And it's not so much red tape as the fact that a State may decide, despite the availability of real estate, this land is occupied illegally, and try to make an eviction. Who is right and who is not, and how to get out of this situation, consider the example of jurisprudence, wrote SYUG.
Related article: The concept of a garden, garden and dacha land changeIn December 2009, the prosecutor in one district of the capital in the public interest (as represented by the Kiev city council) was filed lawsuit against the company for the release of land. According to the plaintiff, defendant, this plot was used to service non-residential building owned by him on the right of property without legal justification, since the results of inspection by the state inspection on the use and protection of land in Kyiv, on the controversial plot of land in defendant was not legal documents.
The Economic Court of the claims dismissed. An appellate court decision the Court of First Instance upheld. VHSU the appellate court also upheld. The Attorney General has filed an application for review by the Supreme Court of Ukraine decree VHSU based on the unequal application of the court of cassation of the same substantive law. The applicants were given orders VHSU, dated 2010, and motivated by the fact that the emergence of property rights on the property is not an unconditional basis for the conclusion of land lease contract. Transactions which involve transfer of ownership of immovable property are also the basis for the transfer of the land, but the execution of this law is carried out in accordance with law.
At the heart of the contested decision was VHSU conclusion on the legality of using the defendant disputed land in connection with the arrangement on it immovable property belonging to the defendant, and execution of the rights to the disputed land with the permission of the Kiev city council.
According to the article. 377 Civil Code of Ukraine, to the person who purchased a dwelling house, building or structure, transfer of title to the land on which they are located, without changing its purpose, in the amounts stipulated in the contract.
If the contract for the alienation of a dwelling house, building or structure size of land is not defined, to the purchaser becomes the ownership of that portion of land which is occupied by a dwelling house, building or structure, and part of the land, which is necessary for their maintenance.
If a dwelling house, building or structure located on the land, providing it for use in the event of their alienation to the purchaser becomes entitled to use that part of the land on which they are located, and part of the plot, which is necessary for their maintenance.
Art. 120 LC Ukraine found that in case of acquisition of ownership of a dwelling house, building or structure owned, use of another person, stops his ownership and the right to use the land on which these objects are located. This right is transferred to the person who acquired the ownership of a dwelling house, building or structure located on land owned in another person, along with ownership of the land or part thereof, on which they are located, without changing its purpose. If a dwelling house, building or structure located on land in use, in case of acquisition of ownership of these facilities to the purchaser becomes entitled to use the land on which they are placed under the same conditions and in the same volume, which were the previous landholder.
Thus, the emergence of property rights on the building or structure to the owner of the transfer of ownership or right to use the land on which it has owned his building or structure. From the record that the defendant is legally owns the non-residential building - the store, located at the disputed land, which, in turn, at the time was under development paperwork for a year rent for the defendant with a subsequent purchase.
Art. 16 of the Law of Ukraine "On Land Lease" found that the conclusion of the lease land from the lands of the state or municipal property is carried out on the basis of a decision of the executive authority or local authority - the landlord accepted in the manner provided TSP Ukraine or the results of the auction.
In this case, leasing land owned by the state or municipal property, carried out on the results of land auctions, unless on such land, erected buildings owned by individuals or entities. Provision of such land in accordance with Part 1, Art. 123 LC Ukraine, carried out on the basis of decisions of the executive or local authorities. Decision they made on the basis of land management projects on allotment of land.
Ie, if the entity has complied with all these procedures, we believe that it illegally (wrongly) took a definite plot unnecessarily. With this conclusion the lower courts agreed, and VHSU, since the defendant, becoming the owner of the building, lawfully initiated to obtain land in use and received the consent of city council for the development of documentation for land management.
However, consider and take appropriate action within the time prescribed by law, obliged to the appropriate local authority, in this case - the Kiev city council, who is the plaintiff in the case, not a person who submits an application.
The same legal position was stated in the resolution of the APU in 2006 This means that with the emergence of property rights on the building or structure is a legal entity there is a right to obtain land for use, while the appropriate authority of the executive authority or local government becomes obligated consider this matter and take appropriate action within the time prescribed by law.
And in case of violation of terms of a potential owner or user to solve the problem in fact, that clearance, is a legitimate site. In such circumstances, MAT dismissed a statement by the prosecutor.