INFORMATION LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of February 8, 2013 No. 01-06/319/2013

About some questions connected with input of new system of state registration of the corporeal rights to real estate and their burdenings

On amendment to the Information letter of the Supreme Economic Court of Ukraine of 29.12.2012 No. 01-06/1953/2012 "About changes in the legislation of Ukraine concerning state registration of the corporeal rights to real estate and their burdenings" and in connection with input in Ukraine from 01.01.2013 new system of state registration of the corporeal rights to real estate and their burdenings we consider necessary to pay attention to it.

1. According to the Law of Ukraine "About state registration of the corporeal rights to real estate and their burdenings" of 01.07.2004 No. 1952-IV (in edition of the Law of Ukraine of 11.02.2010 No. 1878-VI with the changes made according to the Law of Ukraine of 04.07.2012 No. 5037-VI; further - the Law) state registration of the rights to real estate and their burdenings is carried out from 01.01.2013 by the state registrar of the rights to real estate of body of state registration, and also notaries as special subjects to whom functions of the state registrar are assigned.

At the same time the body of state registration carries out state registration of the rights to real estate, in particular: with issue of the certificate on the property right to real estate (including on the new built, reconstructed real estate units, in connection with entering into authorized capital of the legal entity of real estate); based on decisions of authorities (including relevant decisions of court which took legal effect); the corporeal rights which arose till 01.01.2013 and were not registered according to the legislation of Ukraine which affected time of their origin.

Notaries will carry out state registration of the property rights and other corporeal rights: before making of certain notarial action if registration of such property right was carried out according to the legislation which affected the moment of its origin till 01.01.2013; as a result of making of notarial action on real estate, object of construction in progress.

2. Procedure for state registration of the rights to real estate and their burdenings (further - the Procedure for state registration), and also the Procedure for provision of information from the State register of the corporeal rights to real estate, No. 703 is approved by the resolution of the Cabinet of Ministers of Ukraine of 22.06.2011 (with subsequent changes).

The law and Procedure for state registration of the rights provide carrying out state registration of the property right to real estate, other corporeal rights by the application principle by representation to the authorized subject of the corresponding statement for state registration, form and requirements to which establishes the Ministry of Justice of Ukraine (part four of article 15 of the Law, Item 7 of the Procedure for state registration).

According to part one of article 26 of the Law records in the State register of the rights to real estate are made based on the made decision on state registration of the rights and their burdenings. At the same time by part four of article 9 of the Law it is determined that the state registrar independently makes the decision on state registration of the rights and their burdenings or refusal in such registration.

To the stipulated in Article 19 Laws to the bases for state registration of the rights and their burdenings it is carried including the judgment which took legal effect, concerning the property right and other corporeal rights to real estate. The bases for refusal in state registration are determined by article 24 of the Law.

It is necessary to pay attention to change of legislative approach to procedure for cancellation of state registration of the rights. So, unlike the previous edition of the Law on which state registration of the corporeal rights was cancelled in case of, in particular, pronouncement of the relevant decision by court about what data were entered in the Proprietorship register on real estate, from now on the part two of Article 26 of the current version of the Law provides entering into the State register of the rights to real estate of record about cancellation of state registration of the rights "in case of cancellation based on the judgment of the decision on state registration of the rights".

3. Considering the application principle of carrying out state registration (article 15 of the Law) established by the Law, the State register of the corporeal rights to real estate as single state information system which contains data on the rights to real estate, their burdenings, and also about objects and subjects of these rights (article 1 of the Law), it will be filled with such data gradually.

Considering it and on earlier operating procedure for state registration of the corporeal rights the state registrars are given opportunity of use of registration data of the Proprietorship register on real estate, the Unified register of prohibitions of alienation of real estate units and the State register of mortgages, in particular in case of receipt of requests from public authorities and local government bodies about provision of information (Item 16 of the mentioned Procedure for provision of information from the State register of the corporeal rights to real estate).

At the same time in the solution of questions concerning attraction to hearing of cases of subjects, representatives for the Law on carrying out state registration of the rights to real estate, and also obtaining from such subjects of necessary information on owners of real estate, characteristics of this property and so forth, courts should take also into account that long period of time state registration of the property rights to the real estate units located on the parcels of land was carried out on papers by the companies of bureau of technical inventory count which connection to the previous Proprietorship register on real estate happened also gradually.

Besides, the current legislation of Ukraine does not provide access of bodies of state registration of the corporeal rights to databases of bodies of the State land cadastre, and the mechanism of interaction of these bodies for the purpose of exchange of the relevant information (article 28-1 of the Law, article 30 of the Law "About the State Land Cadastre") is only established.

Therefore, in the conditions of establishment of new system of state registration of the corporeal rights in need of clarification of actual data concerning the property rights, other corporeal rights and their burdenings it is reasonable to address at the same time and to bodies of land resources, and to the companies of bureau of technical inventory count taking into account their competence and contents of data which become clear.

4. About stated it is reported according to the procedure of information and for taking into account in resolution of disputes.

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