Land and construction surveying - the key landmarks Act 2367





22.07.2010 11:06
Traditionally, the Supreme Council of Ukraine once a year or more pass laws aimed at improving state regulation of housing construction. And each time such an improvement has signs of work on the bugs.

If the law-making in 2009 was aimed at tightening state control over construction (for example, imposing new permits - Project Declaration, stricter requirements for the intended use of CFF, the status of the householder, etc.), then in 2010 was marked by the diametrically opposite approach - adoption of a law aimed at easing the state regulation in matters of financing the construction, acceptance of construction projects in operation, receiving land lease without holding auctions and etc. It is a law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine concerning improvement of public management in the construction N 2367-VI of 29.06.2009, the

It is therefore very important time to reflect key aspects of the Law N 2367, in time to apply them until they again have not changed. Among the key changes are of particular interest following innovations:

The introduction of the unified state register of citizens who demand better living conditions.
In accordance with Act 800, the Cabinet of Ministers was entrusted with the obligation to create a unified state register of citizens who are in need of better housing conditions in accordance with the law and stay on housing lists. To date, the registration of citizens in need of better housing, is made in accordance with the Council of Ministers of Ukraine dated 11 December 1984 N 470, the provisions of the Housing Code, the Law of Ukraine "On the housing stock of social purpose." As a result of the same work of CMU, which has lasted 1.5 years, must be formed is an automated system of collection, storage and disclosure of such citizens. Moreover, if we follow the provisions of the Law N 2367 roster will lead the executive bodies of rural village and city councils. Directory will also include persons with the intention to join the housing association. Perhaps the lawmakers intent on a mechanism to revive the housing-construction cooperatives to finance the construction of housing for persons in need of better housing conditions. Was some concern about the changes introduced by Law N 2367 of the Housing Code of Ukraine, may cause developers, who use CAV for the purposes of financing and sale of real estate under construction. It is a risk of inclusion in the "private" housing cooperative persons in need of improvement in living conditions (Article 136 HCS). In assessing this risk, we should not lose sight of the fact that voluntary participation in a housing cooperative and mutual will of a person for membership in the housing cooperative - to address the housing cooperative (Article 4 of the Law of Ukraine "On Cooperation"). In my opinion, analyzed changes demonstrate the feasibility of financing the construction of affordable housing using the housing cooperative in accordance with Chapter 5 of HCS and Article 4 of Act 800.

Rental contract with purchase option
Rent a house with option to purchase was a progressive and popular mechanism for funding and selling in installments. At the same time to realize this mechanism in accordance with the law of the model (Article 8101 Civil Code of Ukraine, CMU on March 25, 2009 N 274) was not possible. Rental contract with purchase option is not of legal documents on housing (Annex 1 to the Order of the Ministry of Justice № 7 / 5, Article 19 of the Act of Ukraine "On state registration of real rights to immovable property and Encumbrances"), respectively, on the basis of this agreement may not occur transfer of ownership, notwithstanding Article 8101 of the Civil Code of Ukraine. Unfortunately, the law N 2367-VI do not corrected analyzed legislative gap.

One of the legislative gaps, hindering the use of a lease with option to purchase, after all, was removed - a reference to a special law, which was to define the essential terms of the treaty studied. Now everyone can find a list of mandatory conditions of a rental contract with purchase option. Probably, this list of conditions should be supplemented with suspensive condition, since the onset of which the transfer of ownership of the apartment.

The lawmakers continued theoretical research in matters of tenancy with right of redemption. The law envisaged the possibility of a retreat by the lessor the right to demand the debt to another person - the beneficiary. The assignment of acceptable names on the debt of the tenant and is the exclusive prerogative of the landlord. This assignment of debt should not lead to the replacement of the lessor (Articles 510, 513, MAS), because a landlord to meet its obligations to the tenant-buyer housing is also a "debtor", without whose consent the replacement of the undertaking is impossible.

The abolition of restrictions on investment in construction
Law N 2367-VI expanded the list of acceptable ways to raise funds in housing projects. If previously allowed list included financial and credit mechanisms, joint investment institutions, pension funds and trust bonds. What now for the financing of housing allowed any methods that are defined by laws. For example, housing cooperatives defined by the Act on Co-operation "; mortgages - some Law of Ukraine" On mortgage "; treaties - the Civil Code of Ukraine. Following the practice of enforcement mechanisms that are not reflected in Article 4 of the Law of Ukraine "On investment activity", could be applied before the entry into force of Law N 2367-VI in accordance with the special provisions of existing legislation. But pension funds are excluded from the list of "mechanisms" of investment housing, as before, their investment activities will be based on the laws of Ukraine "On Private Pension Funds" and "On the IIS.

To resolve issues of financing the construction of housing (ie apartments), several investors legislator has obliged them to enter into a written contract, which is subject to compulsory identification of each of the investors and the procedure for making their investments. If it will go about individuals, such contract shall be subject to notarization in accordance with Art. 65 Family Code. In this case, the question remains open about the necessity of concluding the contract on joint investment flats between the spouses, given the general provisions of the Family Code, which does not require the mandatory detention of certain treaties between them - only the written consent of the notary (Article 65 of the Family Code). Obviously, in this situation, the provisions of the Law of Ukraine "On investment activity" will have priority in law enforcement and still need to resort to the notarization of the contract.

For the developer entry into force of the analyzed rule requires mandatory reclamation contract to finance the construction of apartments, between co-investors before the signing of the basic contract.

Given that the analyzed rule refers exclusively to the financing of apartments in the construction site, we can come to a conclusion about its non-use of these legal relationships:

(A) the financing of non-residential stock;

(B) the implementation of investments in securities (eg bonds, mortgages, etc.);

(C) the sale of completed property on terms of deferred;

(D) at the conclusion of preliminary contracts of sale

Natalia Dotsenko-Belous, a senior lawyer law firm "Vasil Kisil and Partners
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