RAIDERS “SCHEMES”. DOUBLE REGISTRATION
After implementing our “Statement Recourse Appeals” service in our company, we will start an overview of the most common, today’s “schemes” used by the raiders.
To date, abuses in the field of registration of land lease agreements are widespread. For the acquisition of another’s property or in order to establish the rights to lease land, often used so-called double registration. Often, the situation of taking ownership of someone else’s property arises due to a change in the procedure for state registration of the right to lease (lease contracts) land plots, which took place on January 1, 2013.
By 2013, the state registration of land lease agreements was carried out by the territorial bodies of land resources by entering information into the Land Book and records in the Book of Records on the State Registration of State Acts for Ownership of a Land and the Right to Constant Use of Land, Lease Land, Which compiled the State Register of Land. From January 1, 2013, the state registration of land lease agreements is not carried out in the State Register of Land. Instead, the state registration of the land lease rights is carried out in the State Register of Real Property Rights for Real Estate, introduced in 2013. At the same time, the legislation did not provide for the automatic transfer of information on registration of land lease agreements from the State Register of Land to the State Register of Real Property Rights to Real Estate. This led to the fact that in the State Register of Real Property Rights for real estate there was no information on the existing legal relations of lease of land plots, rights that arose before 2013. Information about contracts concluded before 2013 – those that expired and those that continued to operate – were not transferred to the State Register of Real Rights to Real Estate. Accordingly, in this register, one or another site was leased free and leased for a certain number of years. However, this site already had its own, quite legal, tenant. Given the current legislation, such situations should not have arisen at all. Since the position on the real rights to real estate by the legislator was clearly defined in Article 10 of the Law of Ukraine “On Amendments to the Law of Ukraine” On State Registration of Real Rights to Real Estate and their Encumbrances “and some other legislative acts of Ukraine regarding the decentralization of state registration authority real rights to real estate and their encumbrances “. This issue was regulated by the state in order to prevent the double registration of the right to lease one land plot for different tenants and to ensure the assurance of the authenticity of registered rights to immovable property. Accordingly, the state registrar of rights to real estate during the state registration of rights that arose in accordance with the procedure established by law by January 1, 2013, should request from authorities, enterprises, institutions and organizations which, in accordance with the legislation, carried out registration and registration of rights, information (certificates, certified in accordance with the procedure established by law, copies of documents, etc.). They should be enough for such registration. Even if the relevant documents were not filed by the applicant, the registrar has the right to access them.
However, it was from 2013 that there were first disputes concerning the “dual lease” of land (simultaneous existence of the state registration of several rights of lease per one land plot). That is, tenants of land plots in most cases appealed to courts with claims for the abolition of state registration of the right of lease of new tenants. It should be remembered that from 2015 the Supreme Court of Ukraine adhered to the unequivocal position that the registration of the right to lease was carried out later should be canceled. The reason for this is the presence of a registered right of lease for the same land plot as grounds for refusal of state registration (the decision of the Supreme Court of Ukraine dated September 29, 2015, from March 30, 2016, dated 15.11.2016). In view of this, the courts recognized the illegal actions of registrars regarding the registration of the right of lease by new tenants and canceled registration actions. In a ruling of 12.06.2018 in the administrative case the Supreme Court indicated that one of the duties of the state registrar is to establish the absence of contradictions between the claimed and already registered rights to real estate and their encumbrances. And in order to check this information, in order to prevent the simultaneous existence of a double state registration of rights, the state registrar not only has the right but also, in particular, to request information from the relevant authorities that performed such processing earlier, and also to demand, if necessary, submission of additional documents, etc. Thus, the Court concluded that it was precisely because of the inadequate performance by the state registrar of his obligations that the existence of the registration of the right of the “original” tenant for the use of the same site remained without the attention of the state registrar, which led to the double state registration of the right.
Consequently, the simultaneous existence of a state registration of several rights of lease per one plot of land contradicts the principles of official recognition and confirmation by the state of the facts of the occurrence of rights to immovable property is a violation of the current legislation and the interests of the tenant, under which the right to lease the land was registered initially and did not cease.
If you find a dual registration for your property, you can contact our company to protect your legitimate interests.
Author: Anatoly Perepelchenko