In the publication the problem of transition of a right of use is in detail shined with the land lot at the conclusion of the lease contract of a real estate object.
Questions of need of the separate lease contract on using such land lot and need of payment of the land tax of one of treaty parties are considered.
According to Art. 181 of the Civil code of Ukraine (further – GKU) belong to fast estate (real estate) the land lots, and also the objects located on the land lot which moving is impossible without their depreciation and appointment change. Differently, those objects are considered as real estate, which movement in space can either do much harm them, or change so that they can be used on other appointment. As we see, "attachment" of object to the land lot on which it is located, and causes its essence as immovable object. Therefore, renting such object, the tenant willy-nilly enters the relations concerning and the most land lot on which this object is.
These public relations found the legal settlement in GKU Art. 796. According to specified article, with the right of hiring (rent) of a building or other capital construction (their part) the right of use of the land lot on which they are, and also a right of use of the land lot adjacent to a building or a construction, in the size necessary for achievement of the purpose of hiring (rent) is at the same time provided to the employer.
Thus the legislator establishes the right, instead of an obligation of the parties by the employment contract (rent) to determine in the contract the size transferred to the employer to real estate (tenant) of the land lot. If treaty parties of hiring don’t use such right and won’t define the size of the land lot transferred in rent, the right of use of all land lot which the naymodatel owned is provided to the employer. And even if the naymodatel isn’t the owner of the land lot, from the point of view of GKU will be considered that the owner of the land lot agrees granting to the employer of a right of use of this land lot. Automatic the consent of the owner of land won’t be considered received only in that case when in the contract signed between the owner of land and a naymodatel of real estate, it will be stipulated that with delivery in employment (rent) of real estate the naymodatel hasn’t the right to transfer a right of use of the land lot on which such real estate is.
Thus, not superfluous at the conclusion of the employment contract (rent) of real estate to future employer will be curious about the right of a naymodatel to the earth. After all existence or absence of the right of the employer will depend on it to use this ground. The problems connected with such absence can be predicted only: for example, receiving permission to establishment of "loker" on a parking before an employed building (the right of establishment of a ban to parking of cars before a building), or any other use of a ground adjoining to it will be difficult.
At this GKU doesn’t divide owners of the land lots depending on their form of ownership. That is has no value that fact that the land lot is in state (nation-wide or municipal) or private ownership. In any case, this land lot will be in lawful using of the employer during all term of hiring (rent) of real estate. The main thing thus – absence in the contract between a naymodatel of real estate and the owner of the land lot of a ban on its transfer to using by transfer to employment of the real estate located on it. Such approach can be used for giving of higher status of legality and legitimacy of using by this ground. After all even if the right of a naymodatel of real estate to the land lot at the moment of the conclusion of the lease contract of real estate won’t be legalized", the right of the employer of real estate will use the earth to follow from the Art. 796 GKU and to be based on it, guaranteeing legitimacy of using. The only stipulation thus – absence in the contract between a naymodatel and the owner of land of a direct ban on transfer of this right of use to the employer. And if thus in general there is no such contract, as they say, to the employer and cards in hands.
It is necessary to mean that according to GKU Art. 797 the payment raised from the employer of a building or other capital construction (their separate part), consists of two parts:
• payments for using this building, construction or its part;
• payments for using land lot.
After all if the naymodatel doesn’t have the right to transfer the land lot in using to the employer of real estate, and he hasn’t the right to receive a payment for using such site. And it can become the conflict reason between the employer and, for example, the taxing authority considering that such employer of the right to gross expenses and the tax credit in this part of a rent has no.
Naymodatel who has received such part of a rent (a payment for using the land lot to transfer in using which it hasn’t the right), risks that the taxing authority can, referring to item 11 of Art. 10 of the Law of Ukraine About national tax service in Ukraine from 04.12.90 of No. 509-XII, will try to collect in a judicial order this part in the state income.
In itself rent of the land lot located under rented real estate and adjacent to it, generates also some other controversial questions. For example, whether the separate lease contract of such land lot or enough employment contract of real estate is necessary?
Let’s remind that in this case there is a collision between the norms of the special right demanding the conclusion of the written separate lease contract of the earth, and the provisions GKU establishing as it was specified above, actually "automatic" emergence at the employer of real estate of a right of use by the land lot.
Unfortunately, this problem for the present didn’t find the accurate settlement in court practice, therefore it is necessary to be guided by only certain set of arguments in favor of a position what to conclude additional to the real estate employment contract the earth lease contract not surely as:
• GKU by the legal nature and owing to the Art. 4 according to which it is the main act of the civil legislation of Ukraine, has a priority concerning the Law of Ukraine About a ground lease from 06.10.98 of No. 161-XIV (further – the Law on a ground lease);
• GKU has a priority over the Law on a ground lease as it was accepted after the called Law;
• the part of 1 Art. 796 of GKU has a priority concerning the Law on a ground lease also because is special norm as regulates the relations following from hiring (rent) of real estate. Rent of the land lot on which such real estate is located, is a question derivative of hiring of real estate which should be settled not so much owing to free will of treaty parties of hiring, how many owing to the need caused by hiring of real estate, adhered to this site. After all lack of regulation of these relations in GKU can become the reason of certain conflicts if the right of use of real estate belongs to one person, and a right of use of the earth on which such real estate is located, – to other person. It is clear that neither the first, nor the second person such rights fully can’t realize;
• the in itself employment contract of real estate for the term of over three years is subject to the state registration (GKU Art. 794). Therefore, the state registration of a ground lease occurs automatically as a result of registration of the lease contract of real estate and additional state registration of a ground lease in such cases isn’t required.
To resolve or try to resolve on the future this problem it is possible, for example, by inclusion in the employment contract (rent) of real estate of a number of the conditions stipulating and regulating such relations, namely:
– to the relations following from this contract, standards of the Law on a ground lease as this contract regulates the relations of hiring of real estate, instead of lands aren’t applied;
– the object of hiring (rent), that is real estate, includes also the land lot on which the real estate is located;
– also it is necessary to specify the sizes transferred in using together with real estate of the land lot. It will be confirmation of that essential conditions of using are already settled by such land lot and don’t demand an additional regulation the separate contract.
Second problem question: who in case of a real estate lease should pay land tax, under it located and to this real estate the adjacent?
According to Art. 2 of the Law of Ukraine About a payment for the earth from 03.07.92 of No. 2535-XII the land tax is one of two types of a payment for the earth. The land tax is paid by owners of the land lots, ground shares (shares) and land users. As to tenants, they are payers of the second type of a payment for the earth – a rent.
By article 797 GKU it is established that the rent of real estate consists of two parts: payments for using real estate and payments for using land lot. The second part on the legal essence is a rent for the earth. Thus, the employer of the real estate who has become automatically the employer and the land lot, under it located and to it adjacent, together with a rent pays also a payment for the earth included in a rent. For this reason the employer of real estate paying a rent, has no additional duty to pay the land tax.
It is necessary only to advise to such employers to specify directly in the contract that the rent according to the lease contract of real estate includes also a rent for using the earth.
(On Liga Information and analysis center materials).