Land has long been a recognized capital that is worth investing money, energy and other resources in. Registration of land rights, as well as its use, including the right to lease, has many legal nuances, and sometimes even contradictions at the level of legislation.
One of the predominant categories of litigation among land disputes is disputes concerning the resumption of land lease agreements. This is due to the imperfection of the legal regulation of the procedure, which determines how the contractors under the land lease must act in order for the legal relationship in which they are, to be extended.
The key in regulating the procedure for renewal of the land lease agreement is the Law of Ukraine “On Land Lease” № 161-XIV of October 6, 1998, and to be more precise, its Art. 33, which is called “Renewal of the land lease agreement.” This article has two provisions – part 2 and part 6 -, which are interpreted and correlated differently in judicial practice. According to the established case law of the Supreme Court, Part 2 and Part 6 of Article 33 of the Law “On Land Lease” regulates two independent grounds for the renewal of the land lease agreement.
Thus, for the application of part one of Article 33 of the Law “On Land Lease” it is necessary to establish the following legal facts: 1) the lessee duly fulfills its obligations under the contract; 2) the lessee has notified the lessor of his intention to exercise the preemptive right to enter into a contract for a new term before the expiration of the contract; 3) the tenant has attached a draft additional agreement to the notification letter; 4) the landlord within a month did not notify the tenant of the objections and his decision.
In order to renew the land lease agreement on the grounds provided for in part six of Article 33 of the Law on Land Lease, the following legal factors are required: 1) the lessee duly fulfills its obligations under the lease agreement; 2) before the expiration of the contract, he informed the landlord within the prescribed time of his intention to exercise the preemptive right to enter into a contract for a new term; 3) the tenant has attached a draft additional agreement to the notification letter; 4) the tenant continues to use the allocated land plot; 5) the landlord did not notify the tenant in writing of the refusal to renew the lease agreement. It is worth noting that in this case, the tenant, as in the first, is also obliged before the end of the lease to send a letter of notice of renewal of the lease.
Proving the above list of facts, it is important to choose the right method of defense in this category of cases, as its incorrect definition in the statement of claim may be grounds for refusing to satisfy the claims. So, for example, if the land lease agreement was renewed due to the fact that the tenant continues to use the land after the expiration of the land lease agreement and the landlord did not send a notice of challenge to renew the land lease agreement, it is worth considering the following when formulating the method protection.
Article 33 of the Law of Ukraine “On Land Lease” indicates that in the case of renewal of the land lease agreement, the transfer of the leased land. Such transfer occurs by the parties concluding an additional agreement to the land lease agreement. Such an agreement is the basis for the state registration of the right to lease for a new term in the State Register of Rights to Immovable Property. In this case, according to land legislation, the right to lease land arises from the moment of state registration of these rights. Therefore, if the landlord refuses or evades the conclusion of an additional agreement to the land lease agreement, the appropriate way to protect the violated right is to recognize the conclusion of an additional agreement on the renewal of the lease of land. In this case, you as the plaintiff must state in the statement of claim the content of such an agreement and / or attach to the statement of claim its draft. The content of such an agreement must comply with the previously concluded agreement and be unchanged.
In the event that, contrary to the provisions of Part 6 of Art. 33 of the Law of Ukraine “On Land Lease”, the landlord has entered into another lease agreement with a third party, the object of which is the land preemptive right to which you have, the primary appropriate means of protection will be the invalidation of the landlord concluded with a third party about the carried out state registration of the right of use of the land plot.
It is worth noting that from July 16, 2020, new rules will apply to the renewal of the land lease agreement, so disputes that arise from July 16 will be resolved by the courts
The new article of the Land Code emphasizes that the parties to the contract may prescribe a condition for the renewal of the lease agreement (exceptions are the subject of which are state or municipal lands) (although there is an exception to this exception). No other actions will be required by the parties to the contract to renew it. At the same time, the parties to the agreement will be able to exercise the right to refuse to renew the agreement by submitting an application to the State Register of Real Estate Rights to exclude information on renewal of the agreement from this register one month before the end of the land lease agreement. In case of failure to submit the relevant application, the state registration of the relevant right is extended for the same period.
Such innovations will clearly not prevent disputes over the renewal of the land lease agreement, but on the contrary will contribute to a different understanding of the procedure for the renewal of the land lease agreement. As a result, everything can lead to a situation where the landlord, using the preemptive right, will apply to the landlord with a letter to renew the land lease agreement, and the landlord at the same time submit an application to the State Register of Real Estate Rights to exclude information on contract renewal.
When resolving land disputes, including those that arise in the process of renewal of the land lease agreement, it is important to know and understand all the nuances of the legislation, which is quite contradictory, the same is the case law. Attention to detail, the formation of the correct legal position and evidence base is an important factor in defending their rights to land. Self-resolution of such disputes often leads to loss in court.
You can apply for legal assistance in resolving land disputes to us, Neofelis Lo Group Law Firm. Our lawyers provide legal assistance in land disputes, in particular on the renewal of the lease of land, as well as in cases where the right of ownership is issued in violation of applicable law; the right to use the site is improperly executed; the land plot has passed into the illegal use of third parties; violation of the rules of good neighborliness; violation of the right of limited use of the site; termination of the land lease agreement. We combine the experience and efforts of all employees to resolve each case, as a result of which we take into account all the nuances. We will be glad to help you!
Lawyer Ekaterina Tarasova
Lawyer Natalia Zhurok
Phone: + 38 (050) 471-77-71
neofelis.com.ua/new
Email address: NEOFELIS.LG@GMAIL.COM