The material is devoted to rules which should be observed at the conclusion of the lease contract of the earth that the rent relations brought to the parties mutual benefit.
Svetlana BOGANOVA, head of the legal department of the Dnepropetrovsk agricultural consultative service
The ground lease is today the most effective tool of increase in ground grounds in agricultural production, and for a great number of rural dwellers – one of essential sources of the income. In order that the rent relations brought to the parties mutual benefit, it is necessary to observe some rules. About them speech in this consultation also will go.
At the conclusion of any contract it is necessary vypolnit the following main actions:
• to check powers of the parties signing the contract;
• to include in the contract essential conditions;
• to define the rights and obligations of the parties.
Treaty parties
Treaty parties of a ground lease are the arendoyodatel and the tenant. About the one who can be them, you learn from tab. 1.
Table 1
Essential contract provisions
Mentions of lease contracts of the earth it is possible najti in ZK, group of companies, HK and the Law No. 161. Provisions of these normative legal acts a little protivorechivy (in particular, it concerns essential contract provisions and need of its notarialyyony certificate). However the Law No. 161 About a ground lease yavlyaetsya special also has a priority before druyogy laws in the sphere of ground and rent prayovootnosheniye therefore further we will be isxodit from its provisions.
Information on essential provisions of the lease of the earth it is representable in tab. 2.
Table 2
Pay attention! Existence of all essential contract provisions important both for the lessor, and for the tenant as their absence can privesti to refusal in state registration of the contract or a priyoznaniya its void.
The resolution No. 220 approved the Model treaty of a ground lease. It can be used at a contract sostavyoleniye, concretizing separate conditions.
Rights and obligations of the parties
The rights and obligations of the parties in the contract should be stated according to the Law No. 161, but the parties can define both other rights and duties if they don’t contradict a zakonodatelyyostvo of Ukraine.
So, it is possible to copy simply Art. 24 and 25 Laws No. 161, and it is possible to provide, besides, to a priyomer that the tenant is obliged to process the earth isyoklyuchitelno independently and not to transfer it in subrent, or to use special agrotechnologies, or that it can’t erect structures or zakladyvat a garden, etc.
Lease contract registration
Let’s say you agreed about all essential conditions and signed the contract. The lessor with relief sighs and anticipates receiving an arendyony payment, the tenant plans and is ready xozyajstvovat. However the legislation forbids pristupat to use of the land lot to an ustayonovleniye of its borders on the district, the conclusion of the lease contract and its state registyoratsiya. Therefore, while on the contract there will be no signature and the press of the body authorized on a gosregistrayotsiya, it isn’t considered the prisoner and not porozhdaet any rights and obligations of the parties.
Today operating it is considered Postayonovleniye Kabmina Ukrainy # 2073 which orders registrirovat lease contracts in the Village Soviets and the district state administrations. However this resolution contradicts Law No. 161 Art. 20 according to which registration is carried out in an order provided by the law, and the resolution KMU to that isn’t.
At registration of lease contracts and the rights of a polzoyovaniye earth now it is necessary to be guided by Zayokon No. 1952 and the Resolution No. 1088 which regulate questions of the state land registration and the rights to an immovable imushcheyostvo, though they act yet in full.
According to the specified documents lease contracts of the earth are registered by the Center gosudarstvennogo a land cadastre and its office on places.
What order of registration?
• It begins with creation of the registration carriage, entering of information into the Book of registration of dogoyovor of rent and into the automated system kadastra. All this becomes, certainly, with a request of a set of documents and for a payment.
• The size of a payment depends:
- from the legal status of the person – individuals pay less;
- from a configuration of the land lot – the it at you is more difficult, the it is necessary to pay more.
Therefore, if the legal person signs the contract with the physical person the lessor, from the point of view of economy of means there is a sense to assign duties on a regisyotratsiya to it.
On the other hand, if there is a lot of lessors, kontrolirovat execution of this duty is difficult, and to use earth without properly issued documents it is impossible.
The registrayotsiya of contracts the legal person, but under powers of attorney from physical persons can be an exit in this situation. It is necessary to count only that will be vygodyony – to pay for registration on tariffs of legal persons or to issue powers of attorney and to pay on tariffs of physical persons.
All arrangements on registration payment not to the superfluous will state in the contract, and a payment for a reyogistratsiya to divide equally between the doyogovor parties.
• Not less important point of registration - term of its implementation. At least it is necessary to stipulate a contract term on registration – no more than 5 days from the date of signing.
• Separately it is necessary to mention a notarial udosyotovereniye of the contract. According to the Law No. 161 it is made at will of one of the parties and not yavlyaetsya by the obligatory.
Early cancellation of the contract
Let’s begin with that, having risen once not from that foot and having decided that you don’t like a type of sunflowers on peyoredanny you in rent to the earth, don’t hurry bespokoit the tenant. Contract cancellation in an odnostoyoronny order isn’t allowed (if only you didn’t write down previously in the contract in what sluchayax it is possible, or if such cases obuslovleny the law).
If the type of podsolnechnik isn’t pleasant neither to you, nor to the tenant, laws allow to terminate the contract by a mutual consent of the parties (Art. 31 of the Law No. 161, Art. 651 of group of companies). Thus matters only these are soyoglasy, instead of the reason on which it is terminated.
The form of the agreement should be same, as well as the contract. There was a contract of a simple written form, should be tayoky and the agreement on its rastorzheyoniya, was notarized – assure notayorialno.
Because the agreement on cancellation prekrashhaet the rights (Art. 653 of group of companies), it also is subject to a gosregiyostratsiya. If at cancellation the parties have losses, they have the right to demand each other their vozmeyoshcheniye.
Much worse when sunflower are good, but here they in the form of a rent don’t bring pleasure to you. Here it is a question of default of obligations under the contract, and you have the right not only to demand rent payment (appropriate performance of the contract), but also to refuse cooperation with the nerayodivy partner. Only in this case it is necessary to prove a neradiyovost in a judicial order, veyoroyatno, at the same time with the requirement to pay a zayodolzhennost (Art. 31, 35 Laws No. 161).
The similar right is and at the tenant as the lessor too can behave inadequately, for example interfere with use of the land lot by the tenant.
Treaty extension
When term of the contract comes to an end, there is a question of extension or the termination of rent otyonosheniye.
By the general rule in case of renewal dogovora for new term of the party can reconsider its conditions by agreement, for example increase or reduce a lease term, the size of a rent and an order of its payment, to enter new duties, etc. The new contract in this case consists.
However the lessor should remember: if he doesn’t wish to prolong a lease term or wants to sign the contract with other tenant, should send to the tenant the letter notice that from the date specified in the contract, the rent relations between the parties stop also the tenant against a prodolyozheniye of this lease contract.
If such objection doesn’t arrive to the tenant in a teyocheniye of one month after lease contract term, this contract is subject a vozobnovleyoniya on the same conditions and for the same term which were provided by the existing contract.
For registration of renewal of term of the lease contract in this case nevertheless it is necessary to conclude the additional agreement which to change contract term. It will be a reliable dokazatelyyostvo of continuation of the rent relations between the parties.
The tenant should note the following rule: the tenant, properly ispolnyayoyushchiya the duties under the contract, has the preimuyoshchestvenny right to rent treaty extension other things being equal.
In other words, if two tenants offer the identical lease term, an identical rent and other conditions, it is necessary to sign the contract with that from them with which the lessor already entered the arendyony relations. Otherwise the court will oblige the lessor zaklyuchit such contract.
(On Balans-Agro newspaper materials).