Head of real estate and commercial law practice
Specialist in the field of commercial law and process. Real estate, construction support; land law and protection of property ownership.
Land plot surface agreement
Superficies in Ukrainian land law is defined as the right to use another person’s land plot for development purposes. This is a separate type of right enshrined in the Land Code of Ukraine. Its essence lies in the fact that the owner of the land plot, on the basis of a contract or will, transfers it to another person for use for the construction of industrial, residential and other buildings. It is worth noting that under the superficies of the land plot agreement (hereinafter referred to as the superficies agreement), the ownership of the constructed buildings does not belong to the owner of the land, but to the other party to such an agreement.
Essential terms of the superficies of the land plot agreement
Such an agreement must contain a number of conditions, without which it will be considered unconcluded and will not gain legal force. The main ones are the following:
- subject of the agreement. There must be a clear definition of the site, its location (address, cadastral number), area, intended purpose, purpose of provision for use. The agreement must indicate for the construction of which specific objects the surface area is provided;
- construction volumes. It is necessary to prescribe in as much detail as possible the area of the planned development, technical characteristics of the property, etc.;
- term of the agreements. It is determined by agreement of the parties and cannot exceed 50 years if we are talking about land in state or municipal ownership. There is currently no such restriction on privately owned land;
- payment for the surface area. It is worth specifying the size, form and procedure for paying the fee for land use. The fee can be one-time or periodic payments. It is worth noting that for the construction of industrial facilities, the right of the land owner to receive a share of the land user’s income may be provided (Article 414 of the Civil Code of Ukraine);
- conditions for the preservation of the land (its condition). This may include issues regarding the improvement and maintenance of the relevant facility in good condition.
To prevent disputes, it is recommended to also include conditions regarding the procedure for alienation of the real estate object, the preemptive right to purchase the land plot from its owner by the superficiary, the consequences of terminating the agreement, and the liability of the parties for violations. Also, to date, the Cabinet of Ministers of Ukraine has not approved a standard form of a superficiary agreement, although it is customary to use the Standard Land Lease Agreement, approved by Resolution of the Cabinet of Ministers of Ukraine No. 220, adapting it to the specifics of superficiary.
Registration of a superficiary agreement for a land plot
The mandatory state registration of such an agreement is expressly provided for in the legislation (in particular, in the Law of Ukraine No. 1952-IV). An application for state registration can be submitted to the Central Registration Service or a notary. Prikhodko & Partners lawyers emphasize that for successful registration, it is necessary to collect a list of the following documents:
- original (notarized copy) of the agreement;
- cadastral plan of the plot;
- receipt confirming payment of the administrative fee;
- power of attorney of the representative (if necessary).
Grounds for termination of superficies
In accordance with the current national legislation, an exhaustive list of grounds has been determined, under which superficies on land may be terminated, in particular when:
- the land owner and land user merge into one person. This occurs when the superficiary (user) acquires the right of ownership of the land plot, or vice versa, the owner of the land plot becomes the owner of such a right;
- the expiration of the contract;
- the entry into force of a court decision in cases provided for by law. For example, the court recognizes the existence of a material violation by the superficiary of the terms of the superficies contract, declaring it invalid;
- the land is not used for development for three consecutive years.
In the event of termination of such a contract, the question arises of the fate of the immovable property that has already been built. This can be resolved by reaching appropriate agreements between the parties or by applying to the court, which may decide on: the redemption of the immovable property by the land owner at market price; the obligation of the property owner to demolish the erected buildings.
How can land lawyers “Prikhodko and Partners” help?
Our lawyers can provide comprehensive support at various stages of concluding a land plot superficies agreement, ensuring the protection of clients’ interests. Our specialists provide professional legal support, which includes:
- consultations on the current legislation regulating the right of superficies and the terms of the agreement on it. Lawyers will also analyze the specific situation, help identify and minimize potential legal risks. During the initial legal consultation, information is also provided on the cost of further legal support;
- preparation of a draft land plot superficies agreement. Lawyers will ensure that all essential conditions are taken into account, help to regulate in detail all important aspects of the rights and obligations of the parties, develop additional agreements on the use and alienation of real estate objects built on the right of development (if necessary);
- legal examination (due diligence) of the agreement proposed by the other party. Specialists will help identify potentially disadvantageous provisions of the contract, prepare substantiated recommendations for making changes or additions;
- support for notarial certification and state registration of the contract. Finally, lawyers will help collect all the necessary documents, submit them to the appropriate authority, and monitor the legality of the specified procedures.
By contacting the lawyers of Prikhodko and Partners on issues of concluding a land plot superficies agreement, you receive qualified legal assistance at every stage, which allows you to avoid legal errors, protect your rights and ensure the transparency of the transaction. To find out the cost of legal support, fill out the form below.
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