In the publication it is a question of a superfitsiya, as one of options of use of another’s property (land lot) for the purpose of construction on it of buildings, constructions with acquisition by the builder of an ownership right on them.
Features a superfitsiya are described.
The considerable part of our cultural heritage gets the roots into Ancient Greece. Romans played an important role in distribution of Ancient Greek culture. Being declined before Ancient Greek art, philosophy and sciences, they apprehended them and transferred to the European Middle Ages. Creation of Roman Law which is unique historical and methodological model, the primogenitor of modern civil law became an essential contribution of Romans to European civilization. In the Ukrainian civil and ground law norms of Roman Law, such as land easement, superfitsiya and emfitevzis too are introduced.
In this publication we will stop on one of types of this right – superfitsiya.
The ground relations always excited society. Formation of each state was accompanied by economic, agrarian and land reforms.
In Ukraine reforming of the ground relations is carried out since 1991. Adoption of the Land code to which the new rights to the earth, specified in the third section of this statutory act are established became one of steps of this reform: an ownership right, a right of use (continuous using and rent), the right of land easement, a right of use of another’s land lot for agricultural requirements (emfitevzis) or for building (superfitsiya).
The right of possession arises on the basis of the contract with the owner or the person to whom the property was transferred by the owner, and also on other bases established by the law. Possession happens diligent and unfair. The unfair owner is obliged to return immediately property to the person who has on it an ownership right or other right according to the contract or the law, or is the diligent owner.
The right of use of another’s property (servitut) can be established rather land lot, other natural resources (land easement) or other fast estate for satisfaction of certain needs of other persons which can’t be satisfied with a different way. Servitut it can be established by the contract, the law, the will or a judgment.
The right of use of another’s land lot (emfitevzis) is established by the contract between the owner of the land lot and the person which has expressed desire to use this land lot for agricultural requirements. It can be alienated and be transferred in an order of succession.
The owner of the land lot also has the right to provide it in using to other person for construction of plant, household, welfare, residential and other buildings and constructions (superfitsiya).
The concept a superfitsiya appeared for the first time in the Land code in 2007 in connection with adoption of law About modification and recognitions become invalid some acts of Ukraine in connection with adoption of the Civil code of Ukraine No. 997-V. Its definition is given also in the Civil code which Art. 395 establishes types of rights in rem on another’s property among which there is also a right of building of the land lot (superfitsiya).
Let’s consider superfitsy as institute of civil law.
Feature a superfitsiya is that such right can be alienated by the land user or be transferred in an order of succession on the basis of the contract or the will, and also grants the right to the land owner on profit on the industrial, other facilities constructed on provided on conditions a superfitsiya the land lot. The right of use of another’s land lot for building can be established on certain or sine die. However, such right can be stopped in cases:
– coincidence in one face of the owner of the land lot and the land user;
– terminations of term of a right of use;
– refusal of the land user of a right of use;
– non-uses of the land lot for building for three years in a row;
– by a court decision and in other cases established by the law.
Any physical and legal entities can be subjects a superfitsiya.
Object the superfitsiya is a right of use of the land lot for construction of certain types of constructions or buildings with possibility for a superfitsiariya (builder) to get an ownership right on them, and for the land owner – to receive a part of profit of the land user. When granting the land lot in using for the purpose of building it is necessary, that its subsequent use answered a designated purpose of a site. Definition of a designated purpose of lands occurs by their reference to this or that category and is carried out on the basis of decisions of public authorities and local government bodies according to their powers (part one of Art. 20 of the Land code) and it is, as a rule, pointed in the state act of an ownership right to this site.
The establishment bases the superfitsiya is the contract between the owner of the land lot and future builder, and also the will. The will also can be the establishment basis a superfitsiya in case of existence in it testamentary refusal to which the testator obliges the successor to provide to other person a right of use for building by the land lot which is a part of inheritance.
Already existing superfitsiya can pass to inheritance both on the basis of the will, and by inheritance under the law. Thus, as a right of use of the land lot for building and an ownership right on the constructions erected on it which are a part of inheritance, are the rights in rem connected among themselves, the specified rights in case of the inheritance section between different successors can’t separately be transferred.
Term a superfitsiya can be certain or uncertain. The minimum and maximum terms a superfitsiya in the Civil code aren’t defined. If superfitsiya it is established sine die, it is considered termless and can be stopped at will of the parties at any time.
Superfitsy can be transferred to other person under any civil-law contract. The conclusion of such contract doesn’t demand coordination of its conditions with the owner of the land lot, and such contract is for it obligatory. Superfitsiary isn’t obliged to report to the owner of the land lot about the subsequent alienation a superfitsiya as in the Civil code (unlike rules about alienation emfitevzisa) the privilege of the owner before other persons on purchase of a right of use by a site isn’t fixed. The plot owner, in turn, is obliged to keep that character of the relations with new superfitsiariy which existed with his predecessor according to contract provisions about establishment a superfitsiya. Thus it is necessary to understand that the land lot, and a right of use is alienated or inherited not of.
Unlike servituta, superfitsiya can’t be bezoplatny. The owner servituta has the right to indemnification from installation a superfitsiya. In effect, at the conclusion of the contract the superfitsiya, a right of use, possession and the order of the owner of the land lot concerning which it is established superfitsiya, isn’t withdrawn. At the same time, the earth the owner tells the right of temporary use for a payment to other person that generates between them ground and civil legal relationship.
Contract form
The current legislation didn’t provide a separate form of the contract on establishment a superfitsiya, but considering that circumstance that such contract can’t be executed by the parties at the moment of its commission, it should be only written.
As superfitsiya it is rather close to the rent relations, the parties can be guided by the essential provisions of the lease of the earth described in the Law About a ground lease from October 6, 1998, and also the model treaty of a ground lease. Thus participants of the relations should specify in the contract of data on the land lot: the purpose of granting it in using, a type of construction carried out on it, and also a legal regime of real estate objects which it is supposed to construct, conditions of paid using a site (the size of a payment, its form, conditions, an order, payment terms) and data on a profit share.
The owner of the land lot provided for building, has the right on:
– receiving a payment for using by it for building. This payment isn’t rent and a payment for the earth, the last is paid separately in the budget. The parties define the size of a payment for using, periodicity of its introduction (single or periodic character of the last), its form, conditions, an order and payment terms and so forth. Not introduction of a payment for using isn’t the termination basis a superfitsiya, however provides to the owner of land the right to demand collecting with a debt superfitsiariya involuntarily;
– receiving in the cases established by the contract, shares of the income of the land user from the industrial facilities constructed on the land lot and so forth;
– possession and using a site in the volume established by the contract with the land user;
– the order a site, including by alienation to her other persons. Thus the owner should warn the purchaser of a site about the right a superfitsiariya on building. Superfitsy will keep the force and for the new plot owner, including for the person who bought the land at the public auction. Transition of an ownership right to the land lot to other person doesn’t influence volume of the rights of the owner of a building (construction) concerning using the land lot (Art. 414 of the Civil code).
The owner of the land lot provided for building, is obliged:
– to provide a certain site under building in the terms defined by the contract on establishment a superfitsiya or the will;
– not to interfere with the land user to carry out a right of use of a site. Against violation by the owner of his rights of superfitsiariya the owner of property (Art. 396 of the Civil code) can be protected by the same means of civil-law protection, as.
Superfitsiary (land user) has the right:
– to use a site for building (construction industrial, household, welfare, inhabited and to volume of similar buildings, constructions) according to the contract on a superfitsiya and law requirements (Art. 413 of the Civil code);
– to use the land lot in the volume established by the contract (Art. 415 of the Civil code). Thus it is a question of use of a site not only directly for construction, but also for service of construction works (the organization of access roads, a construction of a temporary accommodation for builders and so forth);
– to get an ownership right on the buildings (constructions) constructed on the land lot, transferred to it for building;
– to transfer superfitsiya to other persons by the contract or the will.
Thus the person to whom passed an ownership right to buildings (constructions), gets a right of use of the land lot on the same conditions and in the same volume, as the previous owner of a building (construction). Superfitsiary isn’t obliged to report to the plot owner about intention to transfer superfitsiya to other person. Absence of such message doesn’t grant to the plot owner of the right to challenge validity of the contract of alienation a superfitsiya and to demand a payment for such alienation as it is provided in case of sale emfitevzisa. The land user should report only to the owner of the land lot about replacement with his other person in the obligation of payment of using a site (a part the fourth Art. 415 of the Civil code).
Superfitsiary (land user) is obliged:
– to bring a payment for using the land lot provided to it for building. It is necessary to note that the legislation didn’t establish an order of introduction of the specified payment, periodicity and the sizes of such payment therefore a payment for superfitsiya, its sizes and terms of introduction should be essential contract provisions about a superfitsiya. Considering that by a part of the fourth Art. 415 of the Civil code it is defined that the land user obyazanvnosit a payment (and not to bring), it is possible to come to a conclusion that payments for the superfitsy should be not single, but periodic;
– to bring other payments established by the law;
– to use the land lot according to its designated purpose. Thus, if in defiance of this requirement construction of buildings of industrial function is carried out, and superfitsiya it was provided for housing construction, it will be considered as earth use not on a designated purpose;
– to start use of the land lot for building for three years from the moment of establishment a superfitsiya;
– in case of the termination a superfitsiya on request of the owner of the land lot to demolish buildings and to lead a site to a condition in which it was before granting it in using (part one of Art. 417 of the Civil code).
If demolition of the building (construction) placed on the land lot, is forbidden the law (houses, history and culture monuments and so forth) or is inexpedient in connection with obvious excess of cost of a building (construction) concerning cost of the land lot, court, taking into account the bases of the termination of a right of use of a site, can pass the decision on repayment by the owner of a building (construction) of the land lot on which it is placed, or about repayment by the owner of the land lot of a building (construction); about definition of conditions of using by the land lot by the owner of a building (construction) for new term (Art. 417 of the Civil code). At the solution of dispute the court considers value of the land lot, cost of the constructions constructed on it, the termination bases a superfitsiya (a part the second Art. 417 of the Civil code), requirements of justice, integrity and a rationality of the civil legislation (Art. 3 of the Civil code) and so forth.
Drawing up of the project of branch of the land lot
Need of drawing up of the project of branch arises in case of transfer to using of the land lot if change of its designated purpose is provided.
Legal regime of buildings and the constructions erected on the land lot
The contract a superfitsiya should contain the provision on purpose of constructions. Besides, for the purpose of protection of interests of the land owner the contract can oblige the user of the earth prior to the beginning of performance of construction works to coordinate the construction project with the owner of the land lot. The owner can in provisions of the contract concerning terms of return of the land lot demand from the user to return a site in a condition not worse than when it was provided in using, taking into account the changes which have taken place as a result of construction of real estate objects.
Payment for using earth
According to Art. 414 of the Civil code, the owner of the land lot transferred under building, has the right to receiving a payment for using zemleyu. It is necessary to understand that this payment isn’t a payment for the earth (the land tax or a rent for the earth), and is platojza using the land lot for building. There is a question: whether such land lot and if yes, that who is a payer in the budget of a payment for the earth should be taxed?
As earth use in Ukraine the paid is defined by Law Art. 2 About a payment for the earth No. 2535-XII. The payment for the earth is collected in the form of the land tax or a rent. The subject of a payment for the earth (payer) is the owner of the land lot, a ground share (share) and the land user, including the tenant. That is, the land lot should be taxed in the form of a payment for the earth or a rent. The payment for the earth is enlisted in the corresponding local budgets. The payment for using another’s land lot for building doesn’t replace a payment for the earth and, especially, doesn’t release from it. Superfitsiary (land user) pays to the land owner for the superfitsy. In the contract a superfitsiya it is possible to establish such sum of a payment which would compensate to the owner of the land lot the expenses connected with payment of the land tax.
That is granting by the owner of the land lot by another legal or to individuals on the basis of any right defined by the legislation (servitut, superfitsiya, leasing and so forth), doesn’t release the land owner from the duties established by Art. 91 of the Land code, in particular, of timely payment of the land tax.
Concerning granting a right of use by the land lot for building (superfitsiya) local government bodies (village, settlement and city councils), it is necessary to notice that these bodies are only managers of the earth, and according to Art. 413 of the Civil code, on superfitsy the owner ground uchastka.* can provide the right
The right a superfitsiya yet didn’t receive in the state of sufficient distribution, first of all because of lack of information and absence of normative documents relatively about its application. It is time business.
On materials Messenger of tax service of Ukraine
To data
Notes to article…
* we Pay attention to that, chtogoskomzy doesn’t share such point of view and considers that the treaty party the superfitsiya can be any person who is the owner of the land lot or speaks on behalf his name, including local government bodies which have the right to sign contracts a superfitsiya with builders (the letter from 02.07.2008 of No. 14-25-7/7030).
On materials L_GA all Ukraine network: LAW.