The new order of state registration of real estate
New order of the state registration of the rights to real estate
Let's consider in this clause of an innovation concerning the changes, concerned objects of real estate in the form of buildings, structures, constructions, their separate parts without the rights to the ground areas, it is a theme for an individual clause.
So, if you have acquired object of fast estate, whether thus has no value have received as a present, have purchased, have inherited or became the employer of a building or other capital construction, before you at once there will be a question of the state registration of similar acquisition.
According to item 182 of the Civil code of Ukraine the ownership right and other corporeal rights on the fast estate placed in territory of Ukraine which belongs physical and to juridical persons, the state on behalf of the bodies, authorised to manage state-owned property, to foreigners and persons without citizenship, to foreign juridical persons, the international organisations, the foreign states, and also territorial societies on behalf of local governments, is subject to obligatory state registration.
The state registration of the rights to real estate is public, is performed by relevant organ which is obliged to give the information on registration and the registered rights as it should be established by the law on the state registration of corporeal rights on fast estate and their restrictions
Earlier procedure of the state registration of the rights to fast estate, was regulated by the Law of Ukraine «About the state registration of corporeal rights on fast estate and their restrictions» from July, 01st, 2004 № 1952-IV, and Time order of the state registration of transactions from May, 26th 2004 rivers № 671.
But 2/11/2010 the Law of Ukraine «About modification of the Law of Ukraine« About the state registration of the material rights to fast estate and their encumbrances »and other legal acts of Ukraine» from February, 11th 2010 №1878-IV has stated the former Law № 1952-IV in a new wording, and also has provided changes in the Land code of Ukraine, the Civil code of Ukraine, the Law of Ukraine «About local government in Ukraine» and the Law of Ukraine «About a ground lease», many of which will come into force only after 01.01.2012г. New edition of the Law on the state registration, comes into force from the date of publication, i.e. 3/16/2010, however an order specified by this Law for the state registration of the rights to fast estate, will start to act only with 01.01.2012года, as well as changes in the Civil code of Ukraine and in the Law of Ukraine «About a ground lease».
On July, 28th, 2010 the Ministry of Justice had been issued the order № 1692/5 «About modification of the order of the Ministry of Justice of Ukraine from 2/7/2002 №7/5« About the statement of Time position about an order of the state registration of ownership rights on fast estate »(further - the Order №1692/5). Time position is stated by the given order in a new wording which provides an order of the state registration by enterprises BTI not only ownership rights, but also other corporeal rights which obligatory registration is established by new edition of the Law.
Thus, new edition of Time position about an order of the state registration of an ownership right and other corporeal rights on fast estate on October, 1st, 2010 has come into force. Now till January, 1st, 2012 territorial bodies of Bureau of technical Inventory (БТИ) will register as before an ownership right, and also in addition also rights of use, rent, hiring, the servitude and trust management by fast estate.
The ownership right on object of not complete building is subject to the state registration in case of need the conclusions of the transaction concerning such object of not complete building.
New edition of Time position about an order of the state registration of an ownership right contains the exhaustive list of objects of real estate, an ownership right and other material rights on which, it is subject to obligatory state registration:
1) apartment houses;
2) apartments;
3) buildings, in which the located premises intended for stay of the person, placings of personal goods, preserving of material assets, production realisation and so forth;
4) constructions (engineering, hydraulic engineering, etc.) - ground improvements which do not belong to buildings and premises, are intended for accomplishment of special technical functions;
5) premises - parts of internal volume of apartment houses, buildings, the apartments, limited to building elements.
Still the ownership right and other material rights to shoddy constructions are not subject to the state registration.
The law №1878-IV has considerably expanded a circle of corporeal rights on fast estate and their encumbrances which are subject to obligatory state registration, in comparison with former edition of the Law. So, according to item 4 of new edition of the Law of Ukraine «About the state registration of the material rights to fast estate and their encumbrances» following material rights and encumbrances to the fast estate which is in territory of Ukraine are subject to obligatory state registration:
1) an ownership right on fast estate;
2) a right of possession; the right of use (servitude); the right of use of the ground area for agricultural requirements (emphyteusis); the right of building of the ground area (superficies); the right of economic conducting; the operational administration right; the right of constant using and the right of rent of the ground area; the right of use (hiring, rent) a building or other capital constructions, their separate parts; a mortgage; trust management by property;
3) other material rights according to the law;
4) the tax pledge which subject is the fast estate, and other encumbrances.
At the comparative analysis with former edition of the law, the legislator has added the list, the rights of subjects of obligatory state registration, the right of economic conducting and the right of an operational administration with objects of fast estate, the right of rent of the ground area, the right of trust management by property, and also such encumbrance as tax pledge.
Thus, it is necessary to consider that the state registration of the right of use (servitude) on the objects of fast estate located on the ground areas; rights of use (hiring, rent) a building or other capital constructions, their separate parts; trust management by fast estate it is conducted after the state registration of an ownership right on such property
Causes many disputes, a statement in the above-stated clause, new edition of the Law, necessity of the state registration of the right of use (hiring, rent) a building or other capital constructions, their separate parts. Thus, establishing compulsion of the state registration of the right of rent, the legislator was not limited to any term therefore it has turned out that the right of use (rent, hiring) for any term is subject to obligatory state registration. And as position of a part of 3 clauses 3 of new edition of the Law clearly lets know that all rights to fast estate which are subject to the state registration according to the given Law, arise from the moment of such registration it turns out that after March, 16th, 2010 (an effective date of new edition of the Law) the right of rent at the tenant arises exclusively after the state registration of this right. It conflicts the Civil code, agree ч.1 which item 795, calculation of contract period of hiring begins with the moment of transfer to the employer (tenant) of a building, a construction (their separate part), arranged the delivery-acceptance certificate. I.e. now rent contract formation in itself is not a basis for transfer to the employer of fast estate as according to new edition of the Law, the right of rent arises only from the moment of its state registration. Thus, transfer and use by the employer (tenant) of property, will be lawful only after the state registration of the right of rent.
As a result for today, concluding the agreement of hiring of a building or other capital construction (their separate part) for the term of not less than three years, the parties should certificate such agreement notarially and provide its state registration. Besides it, according to new edition of the Law it is necessary for employer (tenant) to register the right of hiring in bodies BTI, and such state of affairs to remain till January, 1st, 2012 when changes for clause 794 ГК of Ukraine according to which it will carry the name will come into force:« The state registration of the right of use by the fast estate arising on the basis of the agreement of hiring of a building or other capital construction ». According to new edition of clause 794 ГК of Ukraine the right of use of the fast estate arising on the basis of the agreement of hiring of a building or other capital construction (their separate part), the prisoner for the term of not less than three years, is subject to the state registration according to the law. It means that since January, 1st, 2012 the lease contract for a period of three years and more will be subject only to the notarial certificate, and to register it in the State register of transactions it is not so necessary.
Why the legislator has created such transition period to 01.01.2012г. Not quite clearly, we will wait for court practice on such disputes.
In methodical recommendations concerning the state registration of the right of use (hiring, rent) a building or other capital constructions, their separate parts (утв. The order of Ministry of Justice from 13.10.2010г. №2500/5) it is noticed that compulsion of the state registration of such corporeal right as hire or rent, does not extend on the legal relationship arising from contracts of hiring of habitation. Considering general principles of adjustment of relations of hiring (rent) which are specified by the Civil code of Ukraine, and also proceeding from positions of the said act, rate concerning compulsion of the state registration of the right of use (hiring, rent) concern only buildings or other capital constructions and their separate parts.
It is necessary to remember that the registered corporeal rights have a priority before not registered in case of origin of dispute concerning fast estate, and before carrying out of the state registration the ownership right and other corporeal rights cannot be considered belonging to the concrete person. The rights to fast estate which are subject to the state registration according to a part of 3 clauses 3 of the Law of Ukraine «About the state registration of the material rights to fast estate and their encumbrances» in a new wording, arise only from the moment of such registration.
The state registration of corporeal rights on fast estate is performed on the basis of the Statement (the established sample) провобладателя (правоприобретателя), the parties or one party of the transaction on which there was a corporeal right, or the person authorised by them who moves in territorial body BTI in which territory this fast estate or big on the area its part is located
At filing of application about the state registration of the rights, the physical person should show the passport or the document which does impossible origin of any doubts concerning this person, and in case of representation of the Statement by the representative - the passport or other document which does impossible origin of any doubts concerning this person, and the document which confirms its powers to act on behalf of such persons (letter of attorney).
Under the passport or other document which does impossible origin of any doubts concerning the person, it is necessary to understand the passport of the citizen of Ukraine, the passport of the citizen of Ukraine for trip abroad, diplomatic or a service passport, residence permit of the person which lives in Ukraine, the national passport of the foreigner or the document which replaces it (item 2.4 of Time position about an order of the state registration of an ownership right and other material rights to fast estate).
It is necessary to put documents to the Statement on a real estate transaction and their copies or other documents testifying to origin, change or the corporeal right termination, and also the document on fee on the state registration of these rights.
The documents confirming origin, transition, the termination of an ownership right and other material rights to objects, the rights concerning which are subject to the state registration, should meet certain requirements. So the text of documents which move for carrying out of the state registration of the rights, should be written is legible. The surname, a name, a patronymic of a physical person and its residence, and also names of juridical persons and their site should be written without reducings. Documents with erasures or дописками, the crossed out words and other corrections not caused in them, filled are not accepted for the state registration of the rights by a pencil, and also with damages which do not give the chance to explain their maintenance unequivocally. The validity of such documents can be established a judgement which will be a basis for repeated circulatuion concerning the state registration of this right.
At reception of the statement for the state registration of the rights to the applicant (applicants), at (their) its desire, registrar БТИ the receipt under the confirmed form stands out.
If alleged rights correspond to the current legislation and are supported by the complete set of documents they are subject to the state registration in time, not exceeding fourteen working days from the moment of accepting by registrar БТИ of the statement for the state registration of the rights (item 3.7 of Time position about an order of the state registration …).
In case has passed more than 12 months after transaction fulfilment (right origin), БТИ produces the state registration, only after technical inventory of object the rights concerning which are subject to the state registration.
After entering of record into corresponding section of the Register of the rights registrar БТИ is obliged to give out the Statement about the state registration of the rights which is an integral part правоустанавливающего the document, and in case of carrying out of the state registration of an ownership right and other material rights to fast estate on правоустанавливающем the document it does a mark (stamp) about the state registration of the rights. Together with the specified Statement about the state registration of the rights to the applicant (applicants) or authorised by it (them) to the person originals правоустанавливающих documents on which basis the state registration of a corporeal right is conducted come back.
In case of loss or destruction of the original of the Statement about the state registration of the rights, it is necessary to publish in a press the message of invalidity of the lost or spoilt Statement of the state registration of the rights, and then a tax in БТИ the written application about issue of the duplicate about the confirmation appendix about announcement publication in mass-media.
In the state registration to you can be and it is refused, (Time position about an order of the state registration of an ownership right and other material rights to fast estate (item 3.5) contains the exhaustive list of bases for refusal in registration of the rights), if:
1. The alleged right should is subject to the state registration according to the Law on the state registration of the material rights to fast estate and their restrictions;
2. With the statement for the state registration of the rights not proxy person has addressed;
3. The object or its big part the rights concerning which are subject to the state registration, is located within territory, subordinated to other territorial body BTI;
4. The presented documents do not meet the requirements, the established legislation, or do not give possibility to establish conformity of alleged rights and the submitted documents to legislation requirements;
5. The alleged right is already registered earlier;
6. Technical inventory of object the rights concerning which are subject to the state registration has not been produced, or it is conducted by another БТИ which performs the activity in territory in which limits such object is located;
7. The ownership right and other material rights to fast estate have arisen on the basis of transactions at availability in the Uniform register of a prohibition of alienation of objects of fast estate of data on imposing of restrictions and-or fast estate arrest that proves to be true the corresponding statement;
8. The ownership right on fast estate which is in tax pledge, has arisen with infringement of the established order of alienation;
9. Alienation or other order object of real estate, the right concerning which are subject to the state registration, in the cases established by the law, have taken place without reception of the Statement from the Register of the rights or term of its action has ended (the given point provides the state registration of the rights under transactions for which the legislation the obligatory notarial form, for example, rent premises for less than for 3 years) is not provided;
10. In 30-days term from the moment of departure of the decision on a suspension of consideration of the statement for the state registration of the rights, the applicant (applicants) does not eliminate circumstances which have formed a basis for decision-making on a suspension of consideration of the statement on the state registration of the rights.
Refusal in the state registration if the given documents do not meet certain requirements, does not deprive of the Applicant of the right repeatedly to address in БТИ, under condition of elimination of bases for refusal in the state registration.
Other bases for refusal in the state registration of an ownership right and other corporeal rights on fast estate by the law it is not provided.
Thus, if registrar БТИ refuses to you carrying out of the state registration of the right to real estate or transactions with it, evades from registration, refuses to give the information on registration, safely appeal against actions of registrar БТИ in court.
Elena Turchina
The paralegal assistant