of January 16, 2007 No. 2-20/11677-2006
About recognition invalid lease contracts of the parcel of land
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 29.03.2007 it is refused to open production on review)
The Supreme Economic Court of Ukraine as a part of board of judges:
chairman: Ovechkina V. E.,
judges: Chernova E. V., Tsvigun V. L.,
with the assistance of representatives: the claimant - Harmanskaya D. O., Senyuta I. V.,
defendants - Polenova O. V., Hvatov V. S., having considered in proceeding in open court the writ of appeal of JSC Tavriya-Avto on the resolution of 26.09.2006 of the Sevastopol Economic Court of Appeal on case N2-20/11677-2006 on the claim of JSC Tavriya-Avto to
1. To Masandrovsky settlement council;
2. Yuzhgidrospetsstroy LLC
about recognition invalid lease contracts of the parcel of land, duty to exempt the parcel of land and recognition of the claimant by the land user concerning the parcel of land by Ploshchad 0,375 of hectare
Of 21.08.2006 the claim is satisfied with the decision of economic court of the Autonomous Republic of Crimea partially - based on the Art. of the Art. 203, of 215, of 216 Civil Code of Ukraine the lease agreement of the parcel of land located on Yuzhnoberezhnoye Shosse, 1a in pgt is nullified. Masandra, regarding the parcel of land Ploshchad 0,375 of hectare, as such which is concluded with violation of requirements of the p. 6 of the Art. 123, Art. 124 of the Land code of Ukraine concerning coordination of the project of assignment of the parcel of land to the second defendant with competent state bodies. Obliged Yuzhgidrospetsstroy LLC to exempt according to the procedure of application of restitution the occupied parcel of land by Ploshchad 0,375 of hectare, and for the rest claims it is refused in connection with groundlessness of claims.
Of 26.09.2006 the decision is cancelled by the resolution of the Sevastopol Economic Court of Appeal regarding satisfaction of claims and the new decision on refusal in the claim with reference to compliance of the challenged agreement to the current legislation, absence at the claimant of documents of title on the disputable parcel of land and absence of proof of stay is made on it the objects of construction in progress belonging to the claimant.
JSC Tavriya-Avto in the submitted writ of appeal asks to repeal the resolution, the decision to leave without changes as considers that the Appeal Court violates requirements of the p. 5 of Art. 124 of the Constitution of Ukraine, the p. 2 of the Art. 35 GPK of Ukraine and the p. 2 of Art. 14 of the Code of administrative legal proceedings of Ukraine by neuchteniye of the facts of successorship of JSC Tavriya-Avto of rather Yalta STO of JSC Tavriya-Avto according to the transfer act of 15.09.2004 and stays on the disputable parcel of land of the real estate (construction in progress) belonging to the claimant which (facts) are established by the resolution of economic court of the Autonomous Republic of Crimea of 16.02.2006 on administrative case by N2-20/3445.1-2006 and the decision of economic court of the Autonomous Republic of Crimea of 16.02.2006 on economic case N2-20/5492.1-2006.
Besides the complainant also specifies non-compliance by defendants in case of the conclusion of the lease agreement of requirements of Art. 638 of Civil Code of Ukraine as signature date in the agreement is absent.
Board of judges, having checked the actual facts of the case regarding correctness of their legal evaluation by courts of the previous instances and having heard explanations of the agents of the parties who are present at meeting, came to conclusion that the writ of appeal is subject to variation, and it is necessary to leave the appealed resolution without changes for the following reasons.
Canceling primary decision regarding the satisfied claims and making the new decision on refusal in the claim the Appeal Court recognized that:
According to Art. 125 of the Land code of Ukraine the property right and the right of permanent use to the parcel of land arises after obtaining by its owner or user of the document who certifies the property right or the right of permanent use of the parcel of land and its state registration. The right to lease of the parcel of land arises after the conclusion of the lease agreement and its state registration. Start use of the parcel of land before establishment of its borders in nature (on the area), receipts of the document which certifies the right to it and it is forbidden to state registration.
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