Legislative Real Estate Market: New rules, new challenges

15.07.2010 20:07
The last year has been active in terms of legislative initiatives that directly or indirectly affect the domestic real estate market. Journalists IAP "Capital estate" decided to find out what awaits the new operators and private investors after the entry into force of new laws.

One of the important laws, which come into force in August this year is the Law № 2258-IV «On prevention and counteraction to legalization (laundering) of proceeds of crime or terrorist financing."

According to the Act, to August 20, 2010 business entities that provide mediation services at the time of purchase and sale of real estate, become the subjects of financial monitoring and the duty to submit information on transactions of more than 400 thous. (About 50 thousand U.S. dollars).

At the same time, experts say, not all transactions of more than 400 thous. will be required to "monitor", but only those which cause suspicion of a realtor.

"Thus, the main condition for providence realtors monitoring is the subjective factor - the presence or absence of suspicion of a realtor. Robot, by definition, such a criterion for the time being carried out by experts of the State Committee for Financial Monitoring of Ukraine "- says Svetlana Bovsunovskaya, Chairman of the Committee on Legislation, Legal Affairs and Standards Association of Realtors (Realtors) in Ukraine.

That is, in fact, realtor gets himself defines whether or not one or the other transaction is subject to its monitoring. For improper performance of their duties subject of financial monitoring would be administrative and criminal responsibility.

In this case, according to Art. 6 to claim 15 of the Act, information on transactions in the company should now be kept for 3 years, as it was before, and 5 years.

Naturally, the reluctance of customers to come under financial monitoring will lead to an underestimation of the official price of apartments to the price of 399,999 USD. "This situation can lead to the fact that year-end statistics, the average value of deals negotiated by various segments of the real estate market will be far below actual market prices. This proves that, border size to 400 ths. - A chapel, which will greatly reduce the receipts to the budget to pay customers state fees and pension collection in operations for sale - real estate ", - said S. Bovsunovskaya.

In this case, it is possible that many customers will resort to "gray" realtors.

According to Vadim Manzheley, head of the legal department of the First Realtor group to date is difficult to talk about how great the likelihood of bias in favor of the priorities of clients in financial transactions using "gray" realtors.

"So the important role the housing market will play a fundamental position sellers of real estate. If the seller is going to meet buyers from dubious sources of income and reduce the amount of the transaction to the required 400 thousand hryvnia, he exposes himself to risk face the challenge of the contract price, which had already, it will act as buyer (if the seller will insist on a real transaction amount ). In addition, often in the transactions of purchase and sale of real estate, except for a realtor involved, and others defined by the Law № 2258-VI, the subjects of primary financial monitoring: lawyers, auditors, notaries, etc. It should be noted that by virtue of legislation Notaries in any way be involved in transactions for the disposal of real estate ", - said the expert.

"Thus, if the client, with the aim to avoid" falling under the monitoring system, consult the "gray realtors, and receive from him the necessary range of services, it is still such actions do not guarantee a client to achieve the desired result due to possible rejection of the transaction by any another entity of initial financial monitoring (including notary) ", - said V. Manzhaley.

But realtors, except duties under the Act, there are a number of possibilities. Thus, according to Art. 6 § 7, the "subject of the primary monitor (in this case, the realtor. - Ed.) To the obligations imposed upon him, has the right to appeal to the executive authorities, law enforcement agencies, the National Bank of Ukraine, to legal entities which are established by legislation , inform about the results of such a request. "

"Realtors will be required to carry identification. For clients - individuals will need to check passport details, to find a place of residence, identification number (for businesses - and even find out information on state registration, bank details). For clients - legal persons, will have to figure out: the name of the organization, its location, details of state registration, management bodies and their composition, data on persons authorized to manage the accounts and property, the code EDRPOU, bank account ", - says Evgeny Karpov, Lawyer Law Firm "Asters".

According to S. Bovsunovskoy, the Act provides for the possibility of obtaining an official realtors required for the transaction of certificates, but this requires more elaborate and adopt a separate document that will define a mechanism for obtaining the necessary documents realtors.

"It's okay to financial monitoring is not. After all, until this law, realtors, as entrepreneurs are registered in the Pension Fund, the Tax Administration, Statistics. And now will need to be back in a body - Gosfinmonitoring ", - says Sergey Bovsunovskaya.

According to Karpov, "The law provides for the legalization of the possibility of a realtor, and even the duty to waive the provision of services, which is subject to financial monitoring. In particular, if it is impossible to identify the client (for example, can not obtain the data listed above in Section 4), the realtor will be obliged to refuse the establishment of business relations and operations. In addition, he has the right to refuse to provide the service if it will be subject to financial monitoring. However, even in this case, you will be notified Gosfinmonitoring no later than 1 business day after such denial. "

Another document, which according to the Realtors will be an alternative and not yet found its incarnation in the life of the Law on rietorskoy activity "- a draft law on self-regulatory organizations."

To date, there are several projects of the Act.

According to the article. 3 of one of them, which filed for consideration by the Verkhovna Rada deputies Kinakh AK, Chechetov MV, V. Yanukovych, GUREYEVA VM, Komarov SA "self-regulatory organizations (SROs) are determined by non-profit organization created for the purpose of self-regulation, membership-based, combining the subjects of entrepreneurial activity, based on the unity of the industry's output of goods and services or market goods and services (in our case, real estate agents. - Ed.) ".

In this case, a self-regulatory organizations to pose serious challenges, which are set out in Art. 3 of the draft Law. Firstly, in the self-regulatory organization must be at least 100 subjects of professional activity, the presence of rules and standards of professional work (in our case, the Standards real estate activities ". - Ed.) Have a special organ that controls the observance of the members of the organization with legal requirements, rules and business standards, etc.

"Self-organization must also have arbitration, insurance and compensation funds, its own system of training and certification", - told the IAP "Capital estate" S. Bovsunovskaya.

With regard to membership in the self-regulatory organization, then, according to S. Bovsunovskoy, "to date on this matter are ongoing discussions. Perhaps in the SRO will be mandatory and optional membership. According to ASNU such membership should be mandatory, or else lose the very meaning of regulation. The number of SROs are not limited to. "

"Realtors who are not members of SROs, still will have access to the profession - to be trained, receive a certificate. All this can be done only in the SRO. Thus, the market will be only 20% of companies and non-professionals will be forced to leave the market ", - said S. Bovsunovskaya.

Another event that should change the situation on the real estate market - is that March 16, 2010, the Law of Ukraine "On state registration of property rights to real property and their limitation." Through this Act, for the first time in Ukraine, the citizens will be titular ownership of the property. This will create a single centralized database of all real estate in Ukraine. Thus, each property during the state registration will be assigned a unique number which will not be repeated and will remain the same throughout the lifetime of the facility. State registration of immovable property shall take effect from 1 January 2012.

Whereas previously the Ministry of Justice were created and used separate registers: Single register prohibition of alienation of immovable property, Hereditary Register, the Register of ownership rights for immovable property, the State Register of mortgages and other, now it will be a unified database.

Mandatory state registration will be subject to property rights and obligations on land, on immovable property located on land ownership, property rights, the right to use, the right to develop a land plot, the right of permanent use and land lease, etc.

"Now, investors and property owners will state guarantees to protect their rights in real estate. In case of any problems associated with ownership, the owner will have claims already in the state ", - said S. Bovsunovskaya.

In her opinion, to the register must be earned to do very much, and most likely in January 2012 the Ministry of Justice will not be ready for such an event.

Another legislative initiative, which provoked much discussion in the business world, including among the players of the real estate market - is a project of the Tax Code of Ukraine. Notified under document number 6509.

According to S. Bovsunovskoy, this document is already unpopular among representatives of small and medium-sized businesses. This Code is directed against the small and medium-sized businesses. The current revision, the project has more than 3 thousand comments.

"The draft Code can not be redone, as it is impossible to reshape the already-cut jacket to another style. In this situation, project must be written anew, "- said S. Bovsunovskaya.

According to Karpov, Draft Tax Code provides for such an innovation as "no principal place of registration. This means that to register with the tax office will need to become not only the location of the taxpayer, but also the location of its offices (for legal entities), as well as its place of registration of immovable property.

Thus, according to paragraph 1 of paragraph 28.3 of Article 28 of Chapter 5-1, when buying real estate not for its location (for example, in another district or region), the buyer must be registered in the tax office within 10 days from the date of registration of real estate . It should also be noted that this applies even to simple physical persons who do not conduct business.

We also introduce the concept of "consideration of the object of taxation." The lessor will be obliged to submit to the Tax Office notice of each lease contract. Such notification must be submitted twice, not later than 10 days after signing the contract and in the same period after its termination or cancellation.

What does this mean in practice for operators of real estate market such as, for example, shopping centers or office? No doubt this will increase that a considerable amount of mandatory reporting, which already has a lot of time and effort.

Explains Karpov, the project envisages that the simplified tax system would not apply to private employers who provide intermediary services for buying, selling, leasing and real estate evaluation. From this we can conclude that only legal entities able to provide these services and stay on the Single Tax.

Furthermore, neither the legal nor individuals can not be a single tax if they rent out land, residential or non-residential premises (buildings, constructions) and / or parts thereof. Obviously, in this case refers to renting out their property.

According to S. Bovsunovskoy, "the document weighted terminology is borrowed from other existing laws, and those who re-invented - contrary to what is already there."

To date, the draft Code posted for public discussion and revision.
Metropolitan Real Estate
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