5 WAYS TO AVOID THE MORATORIUM ON SALE OF FARMLAND
It is important to note that the farm enterprise is a legal entity (i.e. enterprise or organization), so it is subject of general rules of the Civil Code for legal entities. In addition, farms under current legislation - a complete property complex, which can be freely alienated, ie farm enterprise can be purchased, sold, given, etc.
Now back to the moratorium - agricultural lands are divided into fourteen types, each of them has its own purpose. The moratorium applies only to the three types, namely on those that are reserved for:
- Commercial farming;
- Individual farming
- Land shares - which have been allocated to former members of collective farms.
Kind of special purpose indicated on State acts or on the Certificate of title.
If the farmer uses the land with the purpose "for farming," then he can use it freely.
The first method - PRIVATIZATION AND CAPITALIZATION
If the farmer uses the land of communal or state ownership of the lease, then, according to the Land Code, granted by the land can be transferred to a farmer in a private property. With such transfer of land, its purpose is defined as: "for farming," which is exactly what we need, because it is the land, which can alienate. In this case, it is important to understand the difference that is passed. It is not forbidden to sell land share and land in the amount of the unit.
Thus, you need to privatize the land, and then make it into farming capital (which, as we said above, is a legal entity), which further lead to its sales opportunities.
Citizens of Ukraine is not prohibited by law to be the founder of two or more farmings. Therefore, the farmer can continue to use only for own economy (combining all the acquired land for one), or become a founder of several.
The second method - EMPHYTEUSIS
The next opportunity to increase farming associated with a variety of rights to use the land as emphyteusis. Emphyteusis - in many ways similar to the rent of the land, the user also owns the right to use someone else's land. But, in contrast to the lease emphyteusis has a number of features that make it especially attractive.
The greatest advantage of emphyteusis - is virtually unlimited use of the land. If the land lease agreement may be concluded for a period from 7 to 50 years, with clearly fee in the amount of 3% the cost of land, the emphyteusis is indefinitely and for fee, which is determined by the parties. Also it can be one-time fee.
The main feature of emphyteusis for the farmer, is the ability to transfer this right without any agreement with the owner of the land. In fact this is the full disposal of the land. Owner can bring back their land only through its repurchase, and only if the farmer decides to sell his right of emphyteusis.
The order of succession emphyteusis much much easier than inheritance rights to rent. Heirs use land under contract emphyteusis in its original form, with the same conditions and with the same pay, the same term, which could be defined in a few centuries or even indefinitely.
Unlike rent, there is no need for the conclusion a new contract emphyteusis.
The third method - THE EXCHANGE OF LANDS
Another possibility to increase their legal economy is barter of the land. The provisions of the Land Code specifies that the exchange - is a legal possibility to transfer rights for land shares even in the moratorium. It does not matter the size of any exchangeable land share or its regulatory value or purpose. In practice this means that the parcel of land size of a few tens of hectares can be exchanged for a piece of land the size of a garden.
The condition for the conclusion of the contract of barter is: mandatory notarization of the transaction, the subsequent registration of the transfer of ownership. There is no indication on the whereabouts of exchangeable sites in the law no. The parcel of land which is, for example, in the Odessa area, easily changed to any other within Ukraine.
Сourt practice on this issue shows the following: actions of the prosecutor's office and other authorities about the violation of the rules of the moratorium under a barter rejected by the courts, even if there is an exchange of the land share in the area in several acres for the construction of the garage, even if it is with an additional charge. The law stipulates that the exchange - is a civil transaction to which the rule of freedom agreement extends. The parties have the right to choose the terms of the transaction, except for a small list of mandatory conditions.
Barter for the farmer is an excellent opportunity to purchase a new array of agricultural land in exchange for smaller parcels of land. It all depends on the shareholder who agrees to exchange a share on any other land.
The fourth method - PURCHASE OF LAND
The fourth method, which allows to issue land ownership, is the redemption of land from the municipal or state ownership. The possibility of redemption arises if the farmer has the right of permanent use of land, which had been received prior to January 1, 2002.
Prior to the adoption of the current Land Code each citizen had the opportunity to design the right of permanent use of land for the conduct of his farm, which was issued on the basis of the relevant State Act. After the adoption of the Code, this rule was canceled, the legal situation has been suspended, thousands of farmers were left with the old state acts for the right of permanent use, which can now receive only state-owned enterprises.
For out from this situation legislation provided possibility of redemption such land without conducting land auctions. It is possibly to redeem land measuring to 100 hectare, including to 50 hectare of plough-land. After the redemption of land is fully transferred to private ownership. Installment payment for the redemption is possible up to 20 years.
The authority, which must be handled with the application for redemption of the land is StateGeoCadastre. The application should state the act for the right of permanent use and a copy of the constituent documents of the farm. The redemption price is determined on the basis of expert money estimation.
In case if the farm uses the land on the basis of the lease contract which is concluded after January 1, 2002, then privatization is possible only with the purchase of land on land auctions. Land auction conducted only at the initiative of the organizer - the land owner and only on those lands, which are not covered by the moratorium.
The fifth method - LEASE AGREEMENT
Despite the mass of various methods of acquisition of the land , the most widespread the lease contract for today. What appeal and what advantages has it? The main quality of the lease contract is that it is the checked way for buying use of the land.
At rent of the land the standard land lease agreement, with the accurate list of all versions of terms of the contract is applied. Essential conditions, in fact, are only three:
- Object of rent (cadastral number, size and location of the land;
- Validity (from 7 to 50 years);
- The rent (from 3% to 12% of standard monetary assessment of the land, only in cash, also is possible payment in a natural form but in a money equivalent cost of goods which is established at the time of the rent).
The lease contract is the most common method of the use the land shares. But with such a detailed procedure for its conclusion, there are number of points that contain certain risks for the tenant farmers. First of all, it is connected with the possibility of termination the lease, even unilaterally. The procedure for termination must be specified in the contract, or at the request of one of the parties to the contract may be terminated by the decision of the court. If the initiative early termination of the agreement comes from a farmer - a tenant, he is obliged to pay the landlord rent for six months.
Despite all these shortcomings, in a lease are used about 85% of all land in Ukraine shares. Based on this practice, any problems with the conclusion of the contract should not occur, he continues to be guaranteed by the possibility of using the land.