Features of real estate transactions

08.12.2009 11:44
Ukrainian real estate market unrest, a situation which does not sleep well the participants. Its contribution in violation of the quiet sleep of participants of real estate transactions, of course, made new Civil and Commercial Code (CC and HC, respectively). This article will address the problematic aspects of real estate transactions and possible ways to resolve them.

Rent real estate

We will not again affect all known problem with the lease of immovable property for a term exceeding one year, which requires state registration is not known where. Let us turn to other matters better real estate, exciting people, faced with the lease of such property after the entry into force of the new codes.
The first question is whether we should specify in the lease amount of rentable square? The views of practitioners in real estate in this case diverge. How to settle their positions?
New Civil Code states that the leased property must be individually identified. About this does not directly referred to in paragraph 4 of Chapter 58 Civil Code, regulating the hiring of a building or other capital facilities. This determines the Article 760 of the Civil Code, which governs the subject of a contract of employment which may be a thing is determined by individual characteristics and retains its original shape after repeated use (non-consumable thing). So, arguments claiming that the area leased property must be specified, are reduced to that area - an element of an individual determination of the leased real estate. Therefore, the area leased property in this case is an essential condition of the contract and did not indicate it can not.
Arguments of opponents of this position is based on the norms of the Civil Code and the Regulations on the order of a notary public notaries of Ukraine (Instructions). Arguments on the GC based on Article 760, which determines the general features of the individual items, without naming them. Therefore, the area is optional. That says about this manual? She speaks about the notarization of contracts of hiring a building or other capital facility for a term exceeding one year, not to mention the area. Section 9 of the Regulations governing the issue for notaries public, does not mention the area of ??the leased property as an essential condition of the contract. That is, the law does not require the indication area of ??the leased property in the contract. Consequently, without it you can do.
Both positions appear to be sufficiently substantiated. But also suggest that the indication area of ??the leased real property is not mandatory legal requirement, but it's better to be safe and that the area indicated. This does not hurt, but it will personalize the leased real estate.
We also strongly recommend not to forget about the wording of paragraph 4 of Article 1 of the Law of Ukraine "About lease of state and municipal property" on April 10, 1992: "The leasing of property other forms of property may be governed by the provisions of this Act, unless otherwise provided by law or lease agreement." The law is still here, and the parties to better provide in the contract that the effect of the law to their contract are not covered. Otherwise have to deal with the area in certain cases, according to the method of calculation and how to use the rental of state property, approved by the Cabinet of Ministers of Ukraine from October 4, 1995 № 786.

Sale of real estate

Imagine a situation. The company wants to sell or dispose of in any other way part of his estate. It would seem that any problems even in the light of new codes should not arise. But what if that piece of real estate is a part of integral property complex (CEC), which formalized a single certificate of ownership and which is under one address?
For example, in the CEC consists of ten buildings or other structures. The company wants to sell four of them. Logic of actions the company is simple. It refers, for example, in the City Council with a request to assign individual addresses of selling the buildings to avoid any problems with the alienation of real property. Then, the exclusion of these four sites. But when you contact the Bureau of Technical Inventory (BTI), the enterprise receives a "request" for re-registration of ownership of the remaining six buildings. If the company is very interested in selling their four buildings, it is unlikely to engage in a protracted conflict with BTI and spend some time on such re-registration.
But what about the enterprise, if such buildings had not six, but thirty-six? " It takes so much time that the company thought: on what grounds the BTI "requests" to re-register the ownership of another 36 buildings? And asks this question of the Bureau. Bureau of the position to prove the law can not and argues that after the sale of the property remaining buildings will be registered twice: once in the CEC, and the second time - as the selected object. But in this case the arguments of the enterprise is much more persuasive, logical and legally argued. First, the new addresses are assigned to selling real estate, others remain the same as the CEC at the old address. That is, all documents prepared in the sale of selected objects (notarized contract of sale, certificate of ownership of both the transferred buildings, and on the integral property complex decisions about assigning individual addresses alienable buildings), confirm the allocation of the property under the law. That is no problem with the exclusion in this case should not be.
No justification position BTI and the Provisional Regulations on the registration of ownership of real property approved by the Decree of the Ministry of Justice of Ukraine on February 7, 2002. Another argument in favor of the company - the seller of the CEC.
Thus, the actions of ICE in these situations not only do not meet the legislation of Ukraine - they violate it. Unfortunately, only one way out - to sue. But it also takes precious time. Nobody knows what will be longer: the court or re-registration, which requires the BTI.

Apartment lease agreement with ... ourselves

Yes, yes. Arises a question in the light of the adoption of new codes, in particular the Civil Code, which gives the opportunity to create, for example, one person LLC.
And here is the situation: an apartment owned company, created by one person. Company wants to hand over the apartment to its director, is also its founder. Events may develop in two ways, which found their reflection in practice. If the relationship with the company director - of, then the lease can not be concluded. If these relations - no representation, then no one is prohibited.
True, the discussions on this matter are continuing, and the soil for them is the essence of the legal relationship between the company and director. According to part 3 of Article 238 of the Civil Code, the representative can not make transactions on behalf of the person concerned in its own interests or for the benefit of another person, of which he is simultaneously, except for commercial representation, and on others by law. Commercial representation in this case is not suitable, since it, according to article 243 of the Civil Code, applies to persons permanently and self-serving representatives of employers at the conclusion of contracts in business.
Some experts also recommend use Article 207 of the Civil Code, paragraph 2 of Part 2 which states that the transactions entered into by a legal person, shall be signed by persons authorized by its founding documents, power of attorney, law or other acts of civil legislation. Well, if a legal person number of such representatives, for example, two. But what if second to none? And there is no authority, no one else to sign the deal entered into a legal entity? So the question arises: whether the relationship described the problem to the mission from the perspective of Chapter 17 of the Civil Code "Representation"? On the basis of legislation, in particular GC - none. In this case, you must distinguish between the representation of a legal entity, the authority on which are written into the founding documents, and representation, as described in chapter 17 of the Civil Code.
Yes, in part 3 of Article 237 "Concept and types of representation" is written that there is also representation on the basis of the act of a legal entity (the general assembly and executive body). But surely it is the other acts that differ from the statute, which prescribes the powers of the director. That is a founder, in principle, has the right to enter into a lease with the apartment itself, on behalf of a legal entity created by them. But the legal interpretation has yet practical confirmation. Article 207 CC offers a way out of this situation without much risk. It allows to conclude transactions on behalf of the entity to another person by proxy. That is better to write a one-time attorney for the deal - one of the founder as the only party entitled to it - and to conclude such a treaty.

Term of contract

The new XK imperatively prescribed in Part 3 of Article 180 of the "Material Terms of a business agreement" that the parties when entering into a business agreement in any case must agree on the subject, price and contract duration.
Here is a practitioner in real estate and there was a reasonable question: and what time to write in the contract of alienation, such as sale or donation of immovable property? Prior to execution by the parties of their obligations? And then what: contract becomes null and void? But in this case, the primary documents of title to real estate.
Adds fuel to the fire of 7 of the same Article 180 of the HC, which gives the definition of the term of the contract. According to this provision of the contract term is the time during which there are economic obligations of the parties arising under this contract. Definition gives a lot of food for thought on the subject ... It appears that the parties fulfill their economic obligations of the contract and immediately cease to have effect, as over its duration. Conversely, the term of the contract has expired, but the parties have not fulfilled all its obligations due to various reasons, therefore, proceeding from the definition of part 7 of article 180 of the HC, the contract will remain in force. What's the point specified in the contract period? Frankly, meaning little, but HC requires.
As you can see, the codes have added all the hassle. And while that may be different ways to interpret legislation. But all lawyers are certainly looking forward with great court practice, which would more accurately indicate how the norms of the two antagonists, wherewith, in fact, are the CC and HC.
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