On November 23, 2022, the V Business & Legal Real Estate Forum, traditionally organized by the newspaper "Yuridychna praktika", took place.
Representatives of ministries and departments, legislative and judicial authorities, construction companies, legal departments and leading law firms and professional associations discussed the state of the real estate market, purchase and sale and rental relations during the war and analyzed the modern challenges of urban planning and territorial planning.
Tetyana Drobotova, judge, secretary of the court chamber for consideration of cases related to land relations and property rights of the Supreme Court of the Supreme Court, introduced the practice of the Supreme Court in disputes with developers and emphasized the relevance of the topic raised, including in the aspect of urban development.
The speaker drew attention to the fact that the number of options for attracting investment (funds) by a potential buyer of residential real estate directly affects the future chosen method of protecting the investor's violated rights. In addition, she reminded about ways to attract investments, in particular:
– conclusion of a preliminary contract of purchase and sale of an object of immovable property;
– conclusion of a contract of sale of property rights to an object of immovable property;
– concluding an investment contract;
– participation in a cooperative (for example, a housing cooperative);
– investing through construction financing funds, or real estate transaction funds, or joint investment institutes, or with the use of the issue of targeted bonds of enterprises, fulfillment of obligations under which the transfer of the object (part of the object) of housing construction is carried out;
– conclusion of a share participation agreement;
– conclusion of a contract for the purchase and sale of a derivative;
– other ways of attracting investments in accordance with the current legislation of Ukraine.
What exactly is the way to file a claim with the court and what should be taken into account, the judge of the KGS of the Supreme Court demonstrated using examples of current judicial practice, in particular, the conclusions of the Supreme Court of Justice of December 14, 2021 in case No. 344/16879/15-ts and of February 16, 2021 in case No. 910/2861/18.
The speaker also spoke in detail about the resolution of the KGS of the Supreme Court of May 31, 2022 in case No. 914/514/20. In this case, the Supreme Court had to give an answer to the question of the legality of the transfer of a plot of land of communal property to the ownership of business associations (private property) by adding it to the authorized capital of the business association without holding land auctions (and, accordingly, the legality of such a decision of the local self-government body to enter communal property to the authorized capital of the business association). The case materials do not establish such circumstances, and therefore the actual acquisition of ownership of the disputed land plot without conducting land auctions is a violation of the provisions of the current legislation. Conclusions regarding the gratuity / gratuity of such acquisition (without holding land auctions) are not decisive for the correct resolution of this case.
The KGS of the Supreme Court pointed out the illegality of such a decision of the local self-government body (in the absence of exceptions to this general rule established by Article 134 of the Civil Code of Ukraine), since it resulted in the acquisition by the defendant on a non-competitive basis into private ownership of the disputed land plot.
At the same time, in the context of consideration of this case, the Supreme Court did not deny the theoretical possibility of adding land plots of communal property to the authorized capital of economic companies, but once again noted the illegality of such a transfer without holding land auctions.
You can find out more about Tetyana Drobotova's presentation at https://bit.ly/3EZJc72 .