Registration of Ownership of Real Estate Investor
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- Created: Monday, 05 May 2014 07:43
For a long time there was a problem of not explicit legislative decisions in the issue of acquisition of ownership in emerging real estate. This problem greatly hampered the development of economic relations in the country. Therefore, there was a need to adopt the Civil Code of Ukraine (hereinafter — CC of Ukraine ), which came into force on 1 January 2004. One of the tasks of the Civil Code was to resolve clearly and unambiguously the issue of the date of acquisition of ownership in emerging real estate. In the third part of the CC there are new legal facts that give rise to ownership of real property. However, the novel mechanism also contains drawbacks. The issue here is primarily about acquiring new constructed or renovated buildings, "legalization" of which, as usual, is impossible for their owners, for various reasons relating to a rather complicated procedure of legalization of property rights, which are not accessible to everyone.
Review of legislation
According to Article 182 CC of Ukraine the ownership and other rights to immovable property, the restriction of these rights, their origin, transfer and termination are subject to state registration. In accordance with Paragraph 1 of Article 321 the Civil Code of Ukraine stipulates that ownership is inviolable, no-one may be unlawfully deprived of that right or be limited in its implementation.
According to Article 328 of the Civil Code of Ukraine, the right of property is acquired for reasons that are not prohibited by law. In accordance with Part 2 of Article 331 of Civil Code of Ukraine ownership of a newly-created real estate (houses, buildings, structures, etc) arises after the completion of construction (creating property). If the contract or the law provides for the adoption of real estate to the operation, ownership arises from its admission to operation. If the ownership of real property needs state registration, ownership occurs after registration. Thus, the civil legislation of Ukraine effectively identified three moments of ownership in the newly created object property, first — the time of completion, and two cases that act if they are right under the law — the time of adoption of the property to the operation and the time of its registration.
However, if you analyze court practice, experience of which is important for practitioners to successfully protect property owners, point 9 the Supreme Court of Ukraine On the Practice of Courts of Law Regulating Private Ownership of Citizens in a Residential House of 4 October 1991, No. 7, provides that ownership of an apartment house arises only after the adoption of its operation and registration. So if you have acquired ownership of property on a basis that isn't prohibited by law, you are sure to pay attention to the order of state registration of the property.
The author proposes to consider the main issues that are arising during the registration of the newly-created property that was acquired in the property under the agreement to participate in construction funds.
The participation of individuals (investors) in the system of buying habitat through Construction funds is well spread nowadays. This is due to the fact that an investor can buy an apartment much cheaper as it invests in the construction of the property, despite being responsible for the risks and difficulties that may arise in the future. Thus, the genera] principles and legal organizational principles for the involvement of individuals in management to finance the construction of housing covered by the On Financial and Credit Mechanisms and Management of Property in Housing Construction and Real Estate Act of Ukraine. The said regulation provides that the acquisition of ownership by an individual for the newly-created immovable property on the basis of certificates of investing 100% of the investee, which, in turn, seems to confirm investors obligations under the Agreement on the participation in the Fund construction financing for the payment of money (its cost) for that apartment. That is logical as the individual paid for the property and received ownership. From that moment, there may be a number of issues related to the registration of property rights. Among them, in particular, compliance documents attached to the application for registration of ownership requirements of the On State Registration of Rights to Real Estate and their Encumbrances Act and the Resolution of the Cabinet of Ministers of Ukraine on 17 October 2013 No.868. These include an expired term of the land lease of land, inaccuracies in the technical documentation, lack of properly certified copies of the developer and others.
Changes in legislation due to the force of 12 February 2014 Resolution of the Government of Ukraine No.868 of approval procedure for state registration of rights to immovable property and their encumbrances and procedures for providing information on the State Register of Rights to Immovable Property greatly simplified the procedure for registering of property by investors.
Now, investors have to apply for registration of the property with a much smaller set of documents than was the case before. Earlier, if a person was an investor in housing, he/she had to bring a full set of documents for the whole building, and then only documents on her apartment, but now the developer will provide the registration service for the whole package, as a citizen, as the owner of one of its premises, confirming ownership on this specific property. However, this procedure will work effectively with good faith builders, which unfortunately, are quite rare in practice.
Often developers do not submit all the documents for the state registration of a newly created multistorey building, or submit expired documents. Sometimes, developers are reluctant to issue documents to the relevant licensing authority (e.g. decision of the awarding of postal addresses), which in the future will need to be involved in state registration. As a general rule, though the builder has the responsibility to register ownership of the apartment for the investor, this does not preclude the possibility for an investor to apply to registration authorities. This is especially important when the developer does not want to register ownership, arbitrarily ignoring this duty. How can investors protect their rights in such case?
Of course, if an investor turns to the State Registration Service of Ukraine with the help of 100% investment of the investee, confirming his ownership of the apartment, he will be legally denied state registration. The investor will not be able to provide a complete list of documents in emerging property, such as a multi-storey building in general. In this case, it should be noted that in order to get a rapid and qualitative positive solution to the problem, the investor should apply to lawyers to obtain highly professional legal advice.
Professional lawyers will help investors quickly and at the least cost to register ownership to immovable property.
If lacking full documentation, according to the On State Registration of Rights to Real Estate and their Encumbrances Act the registering of an investor's ownership can be based on a court decision. However, you should choose the right way to protect violated rights, which may be as recognition for your property right and the obligation of the developer to commit acts under the contract and the law.
Civil remedies usually refer to the means by which the termination can be achieved, prevent, eliminate violations of law, its recovery and compensation of losses caused by breach of the law. Actually, the judging has resolved methods of protection of rights and legitimate interests depend on the effectiveness of civil law as civil law has settled ways of protection. Part two of Article 16 of the Civil Code of Ukraine provides ways to protect civil rights and interests. The author notes that in this case, a court can protect the rights violated by using only two types of protection — a recognition of rights or the enforcement of obligation in kind. In Ukraine, there was a different jurisprudence, there are judicial decisions when the court requires the developer to register ownership of the investor. However, there is another problem, how can this decision be executed, and the whole procedure for state registration in the order of execution can be delayed for several months.
There is other jurisprudence like judicial rulings adopted on recognition of ownership of the investor. In this case, registration held by the courts much easier and faster.
Thus, although the state registration of rights to immovable property is a much easier burden for individuals for the submission with the application of a certain number of documents, problems in individual cases still remained. Unfortunately, without recourse to a court the problem still exists in a relationship established with construction funds.
Vitaliy Bakhurinskiy
Lawyer with SAFIR Consulting Croup
The Ukrainian Journal of Business Law. No.5 May 2014.