FEATURES OF LAND RENTAL, WHICH IS IN STATE OR COMMUNAL PROPERTY

Experts will not argue that one of the most common issues in the structure of property rights to land, of course, is the issue of land lease, if it is not private, but is state or communal property. For today, there is more than one option for renting this type of land. Today we will consider the existing opportunities.

First of all, the current legislation of Ukraine provides for two possibilities of lease of lands that are state or communal property, namely:

- the results of the auction, ie land auctions (the most priority and common option);

- the results of the decision of the relevant body of land management (according to Article 124 of the Land Code of Ukraine) (option used in some exceptional cases).

That is, a potential tenant who has chosen a particular land plot for further lease or economic activity must decide how he will acquire the land: either during the land auction, or on a monopoly, ie non-competitive basis.

The current Ukrainian legislation singles out the following cases for which no auction is provided: - provision of the relevant land plot for use for certain public needs instead of the one that was purchased or forcibly alienated due to public necessity;

- return of the land plot to the former owner or his heir or successor;

- provision of land plots of state or communal property for the needs of a private partner within the framework of a public-private partnership;

- use of land for needs related to the use of subsoil and water resources;

- lease, concession of property complexes or real estate located on land plots of state or communal property;

- placement on land plots of real estate owned by individuals or legal entities;

- transfer of land plots to citizens for the purpose of haymaking or grazing cattle, gardening;

- renewal of land lease agreements.

That is, we can conclude that all other circumstances that are not included in this list, provide for the lease of land solely on the basis of land auctions, conducted in the form of an auction (Articles 135-139 of the Land Code of Ukraine).

The step-by-step mechanism for acquiring the right to lease during the land auction has 11 steps:

Step 1. Selection of potential land plots.

Step 2. Preparation of auction lots for bidding.

Step 3. Making the final decision of the organizer to conduct the auction.

Step 4. Development of the necessary agreement between the organizer and the bidder.

Step 5. Announcement of information about the auction.

Step 6. Payment of registration and guarantee fees by bidders.

Step 7. Submission by bidders of documents for participation in the bidding.

Step 8. Implementation of the land auction process.

Step 9. Determining the final results of land auctions.

Step 10. Concluding the final lease agreement.

Step 11. Publication of bidding results.

The important fact is that a potential tenant can only submit an application for the intention to build a certain area to the relevant land management authority. However, a potential lessee may in no case encourage such a body to include a land plot in the list of land plots and / or rights to them that are put up for land auction. Given the rather long and complicated procedure of forming this list, unfortunately, we can say that the chances of renting the desired land in adequate time will be negligible. What is the advantage of acquiring the right to lease during the land auction? First of all, it is efficiency.

The process is more efficient because:

- the future tenant is not obliged to obtain a decision of the land management body on permission to develop land management documentation;

- the future tenant is not obliged to receive a decision of the land management body on the transfer of land for lease;

- the future tenant does not have to develop and coordinate land management documentation;

- the future tenant does not have to register the land plot.

Who implements all these procedures? Answer: the organizer of the auction. It performs all the necessary steps before the auction. Important is the fact that the land lease agreement is concluded based on the results of the auction directly on the day of their holding. What are the disadvantages of land auction for a potential tenant?

This is, first of all, the presence of:

- a limited number of land plots put up for auction (thus complicating the choice of land by the tenant);

- competitors (ie other potential tenants) for the right to use the selected land.

Is it possible to rent land without participating in the auction? Yes, it is. The law, namely Article 123 of the Land Code of Ukraine, provides for the following algorithm for obtaining land for rent on a non-competitive basis, which consists of five steps.

Step 1. Obtaining a permit from the disposal authority of the selected land plot for the development of land management documentation.

The grounds for refusal to grant such a permit may be solely the non-compliance of the location of the land plot with the requirements of the legislation, town-planning or land management documentation.

Step 2. Creation and approval of land management documentation.

First of all, the developers of these documents can be legal entities that have the necessary technical and technological support. An important requirement: at least two certified land surveying engineers must work as part of legal entities at the main place of work. These engineers will be responsible for the quality of land management in the future. The second option provides that the developers of documents can be individuals - entrepreneurs who have the necessary technical and technological support and are certified land surveyors responsible for the quality of land management.

Step 3. The final competent decision of the relevant land disposal authority on the lease of land.

In most cases, as practice shows, the deadline for such a decision is two weeks from the date of receipt of land management documentation. Special terms may be established in cases of transfer of a land plot for use in agreement with the Verkhovna Rada of Ukraine, by decision or in agreement with the Cabinet of Ministers of Ukraine. These exceptional situations are determined by parts 7-9 of Article 123 of the Land Code of Ukraine.

Step 4. Concluding a land lease agreement.

Step 5. Registration of the lease right in the State Register of Real Property Rights and their encumbrances.

This is the general picture of land lease, which is state or communal property. Of course, in each case, the potential tenant chooses the most favorable rental option. The main thing is to follow the established legal norms.

We, in turn, will help to understand this.

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Analyst: Victor Kryzhanivsky