In this article possibilities of using are noted by the land lot which are regulated by rent, servituty, emfitevzisy and a superfitsiya.
For subjects of an entrepreneurial activity of possibility of using the land lot, except all of the known relations of rent, are regulated also such unclear at first sight by terms, as servitut, emfitevzis and superfitsiya. Let’s tell about them in more detail.
First of all we will find out, whether these types of a polyyozovaniye earth of the state registration and in what their differences from the earth lease contract are subject. Really, obligatory state registration of the specified contracts is provided by Art. 4 of the Law of Ukraine from 01.07.04 of No. 1952-IV About the state registration of rights in rem on fast estate and their restrictions. Osushchestvyolyaet her Center of the state land cadastre at the State committee on ground resources.
The mentioned contracts can be concluded with sobstvennikami (owners) of the earth – both with physical, and with legal entities. As these contracts provide conditions of an urgent and paid polyyozovaniye earth (behind an exception servituta which can be established free of charge), I recommend to be guided by their drawing up by the legislation on a ground lease and practice of the conclusion of sootvetyostvuyushchy contracts.
It is thus important to remember that separate standards of Grazhyodansky and Ground codes of Ukraine (further – group of companies and ZK) provide the additional rights and obyayozannost for the parties of contracts servituta, emfitevzisa and a superfitsiya. So, except the main essential conditions of these contracts (urgency, a payment for a polyyozovaniye, volumes and the using purposes), in them it is necessary to stipulate and what are provided, but aren’t written out in detail by the law (for example, an order of alienation of a right of use).
Let’s consider separately each option, comparing it to traditional rent.
Servitut
This concept means a right of use of another’s property for requirements satisfaction which can’t be satisfied in a different way (Art. 98 – 102 of ZK, Art. 401 – 404, 406 groups of companies).
It means what to use another’s earth on usloyoviya servituta it is possible only for ensuring the interests connected with the concrete land lot, for example for pass, journey on another’s earth, laying and operation of lines elektroperedachi, communications, pipelines, performance of actions for land improvement, water supply etc.
To exercise the right servituta instead of rent it is possible, only if your rent interests are limited to the vysheyoukazanny purposes. Then you even can demand from the owner of land of establishment servituta by the conclusion of the contract. And here if he refuses zaklyuchat with you the contract, appeal to court.
It is interesting that to demand right of use of another’s earth is possible only on condition that you yavlyaetes the owner (owner) or the user any (as a rule, next) the land lot. The right servituta can be both paid, and free. This question is solved either in the contract, or in a judicial order.
Emfitevzis
This term means a right of use another’s zemyoly for agricultural needs (Art. 1021 of ZK, Art. 407-412 of group of companies).
This option can really replace the obychyony lease contract if your interests in an otnosheyoniya of the earth are limited to its use in the selyyoskokhozyaystvenny purposes. Pluses of such contract for the user in comparison with rent zaklyuchayutsya in the following:
• the land user can transfer the right of a polyyozovaniye to other person, without asking permission the owner of land (and to the contract this right not mozhet to be limited). Thus the owner of land has an advantage in case of sale by the user of the right. It is realized thus: the polyyozovatel of the earth in writing warns a sobstvenyonik that wants to sell the right emfitevzisa at such price and on such conditions. The owner whom the offered conditions, vykupaet at the user arrange his right. If within a month the owner in writing doesn’t declare a soyoglasiya on purchase, the user sells the right to whom will want. By the way, in the contract emfitevzisa percent (share) of the owner of land from sale of the right of the user can be provided;
• if in the contract emfitevzisa it is specified that he zaklyuchen for unlimited term refuses it the owner of land can, only having notified the user not less than one year prior to cancellation (for comparison: at usual rent – from three months).
It is important that under the law the land user is obliged to dispose effectively of the received earth, including to support its fertility, to apply nature protection production technologies, vozderzhivatsya from actions which can worsen an ekologichesyoky situation. Therefore in case of default of such conditions the right emfitevzisa can be stopped by a court decision.
Superfitsy
This term is understood as a right of use of the chuyozhy earth for building (by Art. 1021 of ZK, Art. 413 – 417 of group of companies).
Here the situation is similar with the emfitevzisy: if rent is necessary to you only for earth building, can sign the contract a superfitsiya.
For the user in comparison with rent it is possible to carry that it can to pluses:
• to transfer the right a superfitsiya to other persons without a consent of the owner of land. And this time the law didn’t provide an obligatory preimuyoshchestvo of the owner of land upon right purchase a superfitsiya;
• to refuse earth use, and then validity a superfitsiya stops.
Pluses for the owner of land consist in the following:
• in the contract a superfitsiya it is possible to establish the right of receiving by the owner of land of a part of the income of the land user;
• in the contract it is possible to establish the right of joint using earth – both the owner, and a polzoyovatel;
• validity will stop, if the user for three years doesn’t start to use the earth to destination.
And some words in summary. If your contract is called as the lease contract, but by the nature and otrayozhenny in is mute to conditions is the same servituty, emfitevzisy or superfitsiy, you can apply the standards of the legislation established for these three options of using earth.