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SOME QUESTIONS OF APPLICATION OF THE LEGISLATION IN THE FIELD OF STATE REGISTRATION OF REAL RIGHTS AND THE RELATED ENCUMBRANCES

SOME QUESTIONS OF APPLICATION OF THE LEGISLATION IN THE FIELD OF STATE REGISTRATION OF REAL RIGHTS AND THE RELATED ENCUMBRANCES
O.O. Domina

Участник конференции

On January 1, 2013 the new orderof state registration ofreal rightscame into force and therefore the issue of correct application of relevant provisions of the law by state and local authorities and officials became urgent.

Thus, proper application of law in the sphere of state registration of real rights by courts is essential to ensure citizens' right to possess, use and dispose own property, guaranteed by the Constitution of Ukraine.

Studying court practice in civil cases confirmed that mostly courts correctly adjudge cases of this category in accordance with the applicable law. However, sometimes mistakes in the application of some norms of the Law of Ukraine from June 01, 2004 № 1952-IV "About state registration of real rights and the relevant encumbrances" (Law) and issues, requiring clarification occur.

In particular, some courts don’t determine the way of implementation of adjudication or define it improperly. This leads to incorrect decisions.

Insufficient attention is paid to the procedure of receiving information from the State registry of real rights, the Registry of proprietary right for the real estate, the Unified registry of prohibitions of the real estate alienation, the State registry of mortgages and the State registry of encumbrances of movable property. Insufficient attention is also paid to the definition of the subject, obliged to execute the court decisions.

Taking the abovementioned into account, we believe that courts should pay attention to the necessity of strict observance of legislation in the sphere of state registration of real rights and the relevant encumbrances. Correct and timely settlement of disputes is the guarantee of the real fulfillment of the constitutional right of citizens to possess, use and dispose own property. It is a guarantee of protection of rights and legal interests of government, enterprises, institutions and organizations in matters of fulfillment of real rights.

The issue of using material law by courts and state registration of real rights were studied by such Ukrainian and foreign scholars as M.M. Agarkov, T.T. Aliyev, V.I. Borisova,  I.V. Zhylinkova, G.V. Kykot, O.O. Krasavchykov, N.S. Kuznetsova, D.D. Luspenyk, R.A. Maidanyk, S.A. Parskevova, D.M. Sibilov, I.V. Spasibo-Fateeva, L.G. Talan, A.M. Tverdokhlib, S.N. Khorunzhiy, S.A. Sheyfer, O.M. Shimanovich, V.L. Yarotskiy etc.

The goal of the article is the definition of characteristics of the new order of state registration of real rights and determination of the specificity of proper use of relevant law provisions by Ukrainian courts.

According to par. 5, clause 3 of the Law - state registration of rights is public. It is carried out by the state registration body, obliged to provide information concerning the registered rights and relevant encumbrances in the order, established by this Law. The state registration of rights and encumbrances is carried out in the same order as the receipt of applications.

The state registration of property rights, registered in accordance with the legislation in force at the time they occurred, during the realization of the notarial action towards the real estate or the object under construction, is conducted by the notary, realizing such an act.

The state registration of rights as the result of realization of the notarial action with the real estate or the object under construction, is conducted by the notary, realizing such an act [1, p.3].

Courts should note that according to provision 4 of the Law, the real rights on real estate (defined by the provisions of the Law and other regulations) are subject to state registration [1, p. 4]. In this regard, only property rights on real estate with features of material nature are to be registered in the State registry of real rights in the way prescribed by the Law. Incorporeal binding, corporate or other proprietary rights can’t be registered in the way prescribed by the Law.

In accordance with par. 5, clause 35 of the CPC of Ukraine the third parties not having independent requirements concerning the subject of a dispute may enter the case on the side of the claimant or defendant before the court decision approval, if the decision in the case can affect their rights or duties connected with one of the sides [2 , p. 35].

At the same time in accordance with par. 28 of CPC all physical and legal persons can have civil procedural rights and obligations of parties, the third party, the applicant, the interested person (civil procedural legal capacity). As the bodies of state registration of rights are structural departments of territorial bodies of the Ministry of Justice of Ukraine, they aren’t juridical persons and therefore don’t have the procedural capacity. As a result they can’t act as the third party in the cause. [2, p. 28].

Thus, according to par 35, clause 2 of the CPC, courts should involve regional bodies of the Ministry of Justice of Ukraine as the third parties to the decision making in causes, where proprietary rights on real estate as the subject of state registration may occur, change or stop.

If the decision of the state registry of real rights, the notary, as a special subject with functions of the state registry of rights, is the subject of consideration, as the defendant courts should involve the regional body of the Ministry of Justice of Ukraine, state registrar (or notary) of which made ​​the decision.

Courts should take into consideration, that information from the state registry of rights about the state registration of rights and their charges is given in the form of extract, reference and excerpt according to par. 28, clause 1 of the Law.

At the same time, according to par. 28, clause 3 of the Law the court, the bodies of local government, the bodies of internal affairs, the bodies of public prosecution, the bodies of state taxation service, the bodies of the Security Service of Ukraine and other state bodies (officials) have the right to receive a reference from the state registry of rights on the basis of written request (if this request is made in connection with their authorities, defined by the Law).

The court, bodies of local government, bodies of internal affairs, the bodies of public prosecution, the bodies of state taxation service, the bodies of the Security Service of Ukraine and other state bodies (officials) do not pay for getting the information from the state register of rights (par. 29, clause 4 of the Law) [1, p.28].

The person indicated in par. 28 of the Law, submits the statement (query) (the form and requirements are defined by the Ministry of Justice) to the body of state registration for getting the information from the state registry of rights according to clause 7 of the Procedure of granting the information from the state registry of real rights adopted by the resolution of the Cabinet of Ministers of Ukraine from June 22, 2011 № 703 (The order of informational provision)[3].

Form of request for receiving the information from the state registry of real rights is approved by the act of the Ministry of Justice of Ukraine on April 17, 2012 № 595/5 "About the regulation of relations connected with the state registration of real rights and their encumbrances" registered in the Ministry of Justice of Ukraine on April 20, 2012, № 590/20903 [4].

According to clauses 1, 2 of par. 18 of the Order of provision of information from the state register of real rights during the consideration of the request about granting the information from the state registry in the form of reference, the state registry defines the existence of entries about the state registration of property rights or other proprietary real rights in the Register of real rights, entries about encumbrance of real property rights in the Unified register of prohibition of alienation of real estate or/and entries about encumbrance of real estate by mortgage in the State Register of Mortgages.

If such entries exist in the Registry of real rights, the Unified register of prohibition of alienation of real estate or/and the State registry of Mortgages, the state registrar prepares two copies of references from such registers using the form, example and description of which are approved by the Ministry of Justice [3].

Thus, during the proceedings the courts should take into account that if the appropriate entries about real estate and property rights are absent in the State register of real rights, regardless of the fact of existence of the appropriate statements in the Register of rights for real estate, the Unified register of prohibition of alienation of real estate, the State register of mortgages, the state registrar can not give the appropriate information to the owner of real estate or to others in the form of extract. The information from the listed registers is available only in the form of reference.

It should be noted that the judge examining the appropriate cause has to personally fill in and sign the appropriate request for receiving the information from the State register of rights on real estate. The signed letter with indication of reasons for receiving the appropriate information must be enclosed. The signature of the judge has to be validated by the stamp of the appropriate court.

The documents for receiving the information from the State register of rights on real estate must be submitted to the registration body regardless from the location of the disputed real estate (proprietary rights to it) by the judge, the appropriate employee of the court or sent by post.

At the same time it should be noted that for a long time bureaus of technical inventory registered the rights on real estate located on lands, on paper. Since 2003 the including of bureaus of technical inventory to the Register of rights on real estate has been carried out step by step. Some bureaus, in particular, in Kyiv and Sevastopol, were included to the Register only in May-June 2010. The legislation doesn’t provide the state registrars of the real estate with access to databases of the bodies of land resources, but only gives the right to receive the information, necessary for caring out the state registration of rights.

According to clause 1, par. 2 of the Law from January 1, 2013 the state registration of real rights is carried out ​​by adding the appropriate entry to the State register of rights on real estate [1, p. 2]. Thus the order “About  approving the procedure of using the data of the Register of real rights, the Unified register of prohibition of alienation of real estate, the State register of mortgages and the State register of encumbrances of movable property” by the Ministry of Justice of Ukraine from December 14, 2012, № 1844/5 registered in the Ministry of Justice of Ukraine on December, 18, 2012, № 2102/22414 the orders of the Ministry of Justice of Ukraine,  regulated the order of work with the Register of the rights for the real estate, the Unified register of prohibition of alienation of real estate and the State register of mortgages were recognized as non-valid [5].

Thus, courts should note that the bureaus of technical inventory don’t have access to the Register of real estate rights since January 1, 2013, and therefore they have no legal, as well as no technical capacity to carry out the state registration of real rights in the Registry of real estate rights.

Furthermore, the discontinuance of validity of legal acts, regulating the procedure of the state registration of real rights and their encumbrance in the Registry of real rights, the Unified register of prohibition of alienation on real estate and the State register of mortgages makes further appropriate registrations by the state registrars on real rights and notaries as the special subjects impossible.

One of the main requirements for the adjudication is the possibility to fulfill it. Thus, courts should deny the satisfaction of claims in cases, when the plaintiff asks to lay the obligation of conducting any registration activities upon the bureau of the technical inventory or when the plaintiff requires to put the obligation to register activities in the Register of rights on real estate, the Unified register of prohibition of alienation on real estate, the State register of mortgages on the bodies of rights registration or other subjects.

According to the par.26, clause 2 of the Law the entry about canceling the state registration of rights entered into the State register of encumbrances on real estate if the judgment about the state registration of rights were cancel [1, p. 26].

Thus, the basis for the decision-making concerning the state registration of real estate by the state registrar is the documents submitted by the plaintiff including those, confirming the creation, modification or termination of real rights.

Thus, during the consideration of cases on recognition of real rights or their cancellation by courts, cases of recognition of transactions as invalid, making the entries to the State register of real rights about cancellation of the state registration and other cases of cancellation of entries in the State register of real rights, decisions of the state registrar of property rights or/and recognition of transactions or the ascertaining documents as non-valid, the courts should note that the cancellation of the state registrar decision about the registration of the real rights isn’t a barrier for the plaintiff. He can still ask for state re-registration of the real estate repeatedly. In its turn the state registrar can make the decision concerning the state registration of rights on the basis of the submitted documents.

Thus, the recognition of the legal action as invalid isn’t a reason for making the entries about the cancellation of the state registration of rights to the State register of real rights.

We should also note, that often during the settlement of disputes concerning claims about the recognition of real rights courts don’t investigate reasons for the transition of real estate to the last owner. Therefore during the satisfaction of the claim without the recognition of the legal action (according to which the real estate was moved to the last owner) as invalid, the adjudication can’t be executed as the state registrar has no reasons for the carrying out of the state registration of real rights for the other person, and the legal action, according to which the real estate moves to the other owner, stays valid.

According to the above-mentioned, to make adjudications, that can actually be fulfilled, it is necessary to investigate the reasons for the state registration of rights of the present owner of the real estate, as well as the legitimacy of the adjudication regarding the state registration by the state registrar and recognize the relevant legal action as invalid with simultaneous cancellation of the appropriate decision of the state registrar of the rights on real estate in accordance with law.

According to the par. 19, clause 1 and paragraphs 7 and 10 of the Order of the state registration of real rights and their encumbrance, approved by the Cabinet of Ministers of Ukraine on June 22, 2011, №703, the adjudication, entered into the force is just a document, confirming the occurrence, modification or termination of real rights and their encumbrance. To carry out the state registration of such rights the applicant must submit the application of the stated form and other documents defined by the Law [1, p. 19, 6, 10].

According to the par. 16, clauses 7-9 the Law, the state registration of rights is carried out on the basis of the application of the owner, the other assignee, the side of the legal action, which established the right, persons authorized or the state registrar of cadastre in the cases stipulated by this Law.

The state registration of the encumbrances is carried out on the basis of the application by the body or the official, establishing the encumbrance, the person interested in the encumbrance, person authorized.

The state registration of the mortgage or encumbrance termination is carried out on the basis of the application of the plaintiff. He must submit it during five days since the day of the mortgage/encumbrance termination independently or in response to the written inquiry of the debtor or the other person, whose rights were violated by the existence of such entries [1, p. 16].

In accordance with par. 3, clause 3 of the Law the real rights and their encumbrances, subject to the state registration according to this Law, arise from the moment of such registration [1, p. 3].

Furthermore, in accordance with the par. 334, part 4 of the Civil Code the real rights, subject to state registration arise from the moment of such registration according with the Law.

Courts should note, that according to the par. 794 of the CC, the right to use the real estate, arising on the basis of the contract of the building or other capital construction (or part of it) rental, concluded for a period not less than three years, is the subject of the state registration in accordance with the Law [7, p. 794].

In this regard, the right to use the real estate arising on the basis of the contract of the building or other capital construction (their parts) rental, concluded for a period less than three years does not need the state registration. Thus, the holder is not obliged to claim for the state registration of rights.

Besides, the prolongation of the contract of building or other capital structure (or parts) rental for a period up to 3 years also doesn’t create the necessity of obligatory state registration of rights for using the immovable object.

Summarizing the above-mentioned, we can come to the conclusion that the legislation of Ukraine in the sphere of state registration of real rights has faced significant changes, which come into the force on January 1, 2013. Besides, some features of the new order are connected with the "transition period". In particular they are connected with the use of information from registries, operative before January 1, 2013. These features are also connected with the bodies of state registration of real rights from January 1, 2013 etc.

However, these changes are undoubtedly important for the judicial authority. The correct use of the legislation in the sphere of state registration of real rights by courts affects the implementation of real rights of holders and owners. Therefore, we consider it necessary to define all the conditions, necessary for the solution of the case, and also determine all the conditions for making lawful and executable decisions.

 

References:

  1. On the State Registration of Real Rights and Encumbrances: The Law of Ukraine of 01.07.2004 № 1952-IV / / The Bulletin of the Verkhovna Rada of Ukraine. - 2004. - № 51. - p. 553 (as amended).
  2. Civil Procedure Code of Ukraine: dated 01.03.2013 / / The Bulletine of the Verkhovna Rada of Ukraine. - 2004. - № 40-41. - p. 492 (as amended).
  3. Order of granting the information from the State Register of Real Rights: approved by the Cabinet of Ministers of Ukraine on 22.06.2011 № 703 / / Official Herald of Ukraine. - 2011. - № 51. - p. 2035.
  4. On the regulation of relations connected with the state registration of real rights and encumbrances: Order of the Ministry of Justice of Ukraine from 17.04.2012 № 595/5, registered in the Ministry of Justice of Ukraine on 20.04.2012 № 590/20903.
  5. On the approval of the order of use the data from the register of ownership of real estate, the Unified Register of Prohibitions on Alienation of Real Estate, State Register of Mortgages and State Register of Encumbrances of Movable Property: Order of the Ministry of Justice of Ukraine from 14.12.2012 № 1844/5, registered in the Ministry of Justice of Ukraine on 18/12/2012, № 2102/22414.
  6. The order of state registration of real rights and encumbrances: approved by the Cabinet of Ministers of Ukraine on 22.06.2011 № 703 / / Official Herald of Ukraine. - 2011. - № 51. - p. 2035.
  7. Civil Code of Ukraine: from 01.03.2013 / / The Bulletine of the Verkhovna Rada of Ukraine - 2003. - № № 40-44. - p. 356 (as amended).
Комментарии: 3

Алване Хассан

Работа написана творчески, интересно. Считаю, что она заслуживает высокой оценки. Успехов в дальнейших исследованиях!

Татьяна Долина

Актуальность исследования характеристик нового порядка государственной регистрации прав на недвижимое и определение специфики правильного использование соответствующих положений закона украинскими судами не вызывает сомнения. Работа выполнена на высоком теоретическом уровне. Однако хотелось бы видеть больше практических примеров.

Зульфугарзаде Теймур Эльдарович

Работа написана на весьма высоком теоретическом уровне, однако автор пока не обобщил практику законопримения после 1 января 2013 г., т.е. за 9 месяцев действия изменений, внесенных в законодательство Украины о госрегистрации прав.
Комментарии: 3

Алване Хассан

Работа написана творчески, интересно. Считаю, что она заслуживает высокой оценки. Успехов в дальнейших исследованиях!

Татьяна Долина

Актуальность исследования характеристик нового порядка государственной регистрации прав на недвижимое и определение специфики правильного использование соответствующих положений закона украинскими судами не вызывает сомнения. Работа выполнена на высоком теоретическом уровне. Однако хотелось бы видеть больше практических примеров.

Зульфугарзаде Теймур Эльдарович

Работа написана на весьма высоком теоретическом уровне, однако автор пока не обобщил практику законопримения после 1 января 2013 г., т.е. за 9 месяцев действия изменений, внесенных в законодательство Украины о госрегистрации прав.
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