Errors in the lease of land

12.09.2010 12:07
During the years of Ukrainian independence, many legal institutions that were particularly popular. One such institution is to rent land. In fact, the spread of this type of land use was only after the adoption of the Law of Ukraine "On Land Lease".

Law Institute of the land lease was very convenient for many business entities in Ukraine, with her help they have received the necessary resources to develop their own business.

Related article: From 1 January of transactions with real estate will turn into buying «a pig in a poke»

In this article I would like to dwell on this form of land lease as renting non-agricultural lands for the construction and maintenance of any residential or commercial buildings. It is frustrating to find it strange desire anyone to post their own property on foreign territory.

Seem more logical option to pre-purchase the land. However, the current state of the legal regulation of land acquisition, for example, from government bodies and local authorities to make the procedure very disadvantageous for many wishing to buy land. Article 127 of the Land Code of Ukraine stipulates that in the main land for the building is sold at competitive terms.

In order to reduce the cost of buying land in the ground and the procedure followed by lease purchase option. The fact that the land laws allowed land redemption is not on the terms of auction and tender in the case in this area is a real estate buyer.

Competition, or an auction as a way to purchase the land does not suit the majority of buyers for the simple reason that the price of land obtained very high. In connection with this contest for the sale of land in Ukraine is practically not used.

Therefore, the design was developed, in which the land taken on lease for construction on it erected some buildings, and then the land is redeemed. Everything seems to be very simple and effective. However, please note that this procedure requires a great deal of attention from lawyers, because, as experience shows that common errors in legal registration of land lease. Such errors lead not only to the loss of right to buy land, but also to the considerable material damage.
The most common mistakes in the land lease

Conventionally, such errors can be divided into three groups: admitted at identifying the subjects of lease relations, caused by the specific object of rental relations, in material terms of the lease of land.

Errors of the first group tend to lie in an incorrect definition of a landlord when renting land. According to paragraph 12 of the Transitional Provisions of the Land Code, land within settlements dispose of rural, village and town councils, and outside - the state administration.

Due to the fact that some localities often lack a clearly defined border regulations, the landlord serves an unauthorized person. Or renting land from the local authorities landlord serves the executive committee of the Board, rather than the Council itself.

It should be noted that, until the Land Code of October 25, 2001 this design was legal when properly delegated its authority board. However, since the entry into force of the Land Code, this delegation is not provided. In accordance with Article 19 of Constitution of Ukraine, government agencies and local governments can not perform the duties expressly provided by law.

It is important to note that, despite the apparent obviousness of the legal regulation of this issue, it is now moot, and has frequently been the subject of discussion in general and economic courts of Ukraine.

Errors associated with the specific object of the lease, concluded that some land may not be the object of lease relations (mostly it is typical for construction). So, for example, are often leased for the construction of coastal land protection zones, although construction there is strictly prohibited. Uncommon lease of reserve land. In such situations, the land lease contract may be invalidated, and constructed buildings demolished.

Errors in the material conditions of the contract of lease of land would be given special attention because they are most common. Some aspects of the essential conditions of the lease of land registered in bad land laws of Ukraine, and therefore can be interpreted in two ways law enforcement agencies of our country.

Significant terms of the lease defined by Article 15 of the Law of Ukraine "On Land Lease". These are:

* Object of the lease;
* Term of the contract;
* Rent with the designation of its size, indexing, forms, fees, terms, form of payment, review and accountability for its failure to pay;
* The terms of use and purpose of land that is passed to the lease;
* The conservation of the state of the object of the lease;
* Terms and conditions for the transfer of land lessee;
* Conditions for the return of land to the lessor;
* The existing restrictions on the use of land;
* Definition of the party who bears the risks of accidental damage or destruction of a lease or part thereof;
* Liability of the parties.

The absence of these conditions is the basis for the recognition of the land lease contract null and void.

It should be noted that most problems in this regard arises with such an essential condition of the land lease contract, as the purpose of the land. This is due to insufficient legal regulation of this issue at the legislative level. This led to that jurisprudence is not defined with the unique approach to this problem.

Basic misunderstandings caused by the fact that the law requires to specify in the lease of land earmarked land, giving him at the same time a clear definition in the regulations. Since the Land Code of the categories of land in accordance with the principal end use of land.

Analysis of the legal framework suggests that the "earmarking" and "the main intended purpose" are not identical concepts, and relate to both private and general. This explains many of the errors at the conclusion of land lease contract.

Pointing to the treaty one of the categories of land designated in Article 19 of the Land Code, the parties in this case constitute grounds for annulment, since in reality the purpose of the land remains uncertain. This fact is crucial, because under one main purpose of the earth may have different modes of use.

For example, in the framework of agricultural land can be identified according to the purpose of land for agricultural and horticultural purposes. And though all of them are agricultural, on one can build a house, while others can not.

Another common mistake is the fact that some of the perceived lack of clear definition of land earmarked as an opportunity to free determination thereof. For example, the contract may contain such wording as "accommodation entertainment and recreational park", or "to accommodate the company private contractors and water-recreation complex.

Specified words can not be considered the designation of land earmarked for the simple reason that they do not allow you to uniquely apply to them any mode of land use. So, entertaining park may be on the land for recreational purposes, and recreational lands, and these are different categories of land, not to mention the purpose. The situation is similar to the second example - at one site located objects, which should be located on lands with different modes of use.

Often, in order to avoid such errors, the contracting parties used Ukrainian qualifier of the target land use, approved a letter of State Committee of Ukraine № 14-1-7/1205 on April 24, 1998. However, we must remember that this classifier was approved before the adoption of the Land Code of 2001, so in many respects does not conform to it.

The only possible way to avoid the problems described above is to use the terminology of the Land Code. For example, with respect to agricultural land code operates on such terms as "commercial farming," "Land of gardening," "land farms, etc.

Another condition of the land lease contract, causing a lot of problems in law enforcement - an indication of the rent for the land. Frequently, parties for unknown reasons did not indicate the order of the revision of the land tax, which is in accordance with Article 15 of the Law of Ukraine "On Land Lease" is a ground for refusal of registration of such contract or in recognition of the contract as invalid.

There are ways to protect the interests of the parties in the event that these errors were still admitted. Typically, an interested party requires recognition of land lease agreement null and void, however, it should be noted that civil legislation of Ukraine provides for other ways to protect the violated rights and interests of the parties. Thus, the court may order the parties to amend the land lease agreement and thus avoid the recognition of the agreement invalid.

Furthermore, when one party to a contract of lease of land is a local government or public administration, the recognition of land lease agreement null and void does not mean the end of the tenant rights to land. If the decision to transfer the land lease is still valid, it just makes a statement on a new land lease contract and this contract must be concluded.

This article examined only individual, the most common mistakes when entering into the lease of land. In practice, their number is much higher. Resolve this problem, only more detailed regulation by the legislator of all matters related to the rental of land.
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