How to inherit a land plot if there is no cadastral number? action algorithm

One of the grounds for the acquisition of ownership of the land is its inheritance. Article 1225 of the Civil Code of Ukraine of January 16, 2003 stipulates that the right of ownership of a land plot passes to the heirs on a general basis, while retaining its intended purpose. However, land legislation contains regulations that determine the specificity of inheritance of land plots

Thus, Article 79-1 of the Land Code of Ukraine of October 25, 2001 establishes that the land as an object of civil rights must be formed. A land plot is considered to be formed from the moment an cadastral number is assigned to it. However, such regulations appeared in the Land Code of Ukraine only in 2011. In connection with the adoption of the Law of Ukraine "On the State Land Cadastre". In the practice of regulating land relations, questions arise about the order of inheritance of land plots that are not assigned a cadastral number, that is, which are considered “not formed” according to the instructions of the current Land Code of Ukraine.

In accordance with Art. 1297 of the Civil Code of Ukraine, the heir who accepted the inheritance, which includes real estate, is obliged to apply to a notary or in rural areas - to an authorized official of the relevant local government for issuing a certificate of inheritance property rights. In accordance with p. 4.14, p. 4.18 and p. 4.20 of the procedure for notarial actions of notaries of Ukraine, approved by order of the Ministry of Justice of Ukraine dated February 22, 2012 No. 296/5, issue a certificate of inheritance rights to property registration, is carried out by a notary after the submission of documents certifying the testator’s ownership of such property and verifying the absence of a ban or his arrest. If the estate includes real estate, the notary obtains information from the State Register of Real Estate Rights through direct access to it. Issuance of a certificate of the right to inheritance to a land plot by a notary is also subject to obtaining an extract from the State Land Cadastre, including through direct access to it.

The current legislation establishes an extract form from the State Land Cadastre (Appendix No. 47 to the Procedure for Maintaining the State Land Cadastre, approved by Resolution of the Cabinet of Ministers of Ukraine of October 17, 2012 No. 1051), which should contain the cadastral number of the land plot. Based on these requirements, notaries refuse to issue a certificate of inheritance rights to land plots that: were acquired by the deceased until 2013, the rights to which are certified by State acts of land ownership not registered in the State Land Cadastre numbers.

According to Section VII, Section 2, “Final and Transitional Provisions” of the Law of Ukraine “On the State Land Cadastre” land plots, the right of ownership (use) of which arose before 2004, are considered to be other than assigning them a cadastral number. In the event that these land plots are not included in the State Register of Lands, their state registration is carried out on the basis of technical documentation for land management regarding the establishment (restoration) of the boundaries of the land plot in natu re (on the ground) at the request of their owners (users of state or communal property land).

In 2016, the right to file an application for state registration of a land plot was also granted to persons who filed an application for recognizing the inheritance to be escheated, if such a case was accepted for execution by the court. Moreover, among this list there are no heirs of the land by law or by will, cannot be explained by any expediency. A closed list of persons who may apply for state registration of a land plot unnecessarily complicates the procedure for obtaining title to a land plot in the event of its inheritance.

In 2012, the State Agency for Land Resources of Ukraine issued a letter dated April 17, 2012 No. 5789/17 / 12-12, according to which the customer for the state registration of a land plot could be a person identified in the notary’s request as heir, based on the hereditary case initiated by him. An analysis of this letter indicates that it was issued on the basis of invalid legislation. In addition, it is only advisory value.

The preparation of technical documentation for land management regarding the establishment (restoration) of the boundaries of a land plot makes it possible to initiate state registration of a land plot, which is carried out when forming by opening the Land Registry to such a site. State registration of land plots is carried out at the place of their location by the relevant State Cadastral Registrar of the State Service of Ukraine for geodesy, cartography and cadastre. For state registration of a land plot, the State Cadastral Registrar, which performs such registration, shall submit:

statement in the prescribed form;
the original documentation of land management, which is the basis for the formation of the land;
land management documentation, which is the basis for the formation of a land plot in the form of an electronic document.
An application with attached documents is submitted by the applicant personally or by a person authorized by him or is sent by mail with a valuable letter with an inventory of the attachment and a notification of receipt. In confirmation of the state registration of the land plot, the applicant is issued free of charge an extract from the State Land Cadastre on the land plot, which contains all information about the land plot entered in the Land Registry. When performing state registration of a land plot, it is assigned a cadastral number.

In the legal literature, it is proposed to develop technical documentation for establishing (restoring) land boundaries in kind (on location) in the name of the testator, and issue an extract from the State Land Cadastre in the name of the heir indicated in the notary’s request.

Upon the expiration of the six-month period from the date of the death of the testator, it is necessary to apply to the notary, to whom the application for acceptance of the inheritance was submitted. The notary is obliged to register the ownership of the land in the register of real estate rights.

The author: Anatoly Perepelchenko