№1(12)(2013)

To start a topic that to be covered in this article, I want to note that the provision of state registration of rights to real property entrusted to the BTI by provisions of "Temporary Regulation on the Procedure of state registration of ownership and other real rights on immovable property", approved by the Order of Ministry of Justice of Ukraine № 7/5 of 07.02.2002, invalidated under the new Law of Ukraine "On the registration of rights to immovable property and encumbrances", whose provisions were to take effect on 1 January 2012.

But in late 2011 during the consultation by the BTI, notaries in connection with the unreadiness of the new database of the State registry, the lack of practical knowledge of the procedure for entering data and maintenance of the new state registry, inconsistency of issues regarding jurisdiction, powers and tasks of the state registration of rights, it was offered to postpone the entry into force of the Act to 1 January 2013.

Thus, we will consider in detail new procedure of state registration of rights to immovable property in accordance with the Law of Ukraine "On the registration of rights to immovable property and encumbrances" that came into force on 01.01.2013 (hereinafter - the Law).

First, it should be mentioned that according to para 3 Part 2 of Art. 331 of the Civil Code of Ukraine (hereinafter - CC), the law provides state registration of immovable property, the ownership of such real property arises from the moment of state registration of immovable property and the entry into title to real property rights thereto are subject to state registration is the date of its registration under the Act (Part 4 of Art. 334 CC).

The system of state registration of rights according to Art. 7 of the Law, includes Ministry of Justice of Ukraine, State Registration Service, state registrars and notaries as special agents performing functions of state registrars. Accordingly, the state registration of rights to immovable property will be carried out by public notaries and registrars.

Procedure for conducting state registration of rights to immovable property and encumbrances is set out in Section IV of the Law and the " Procedure of state registration of rights to immovable property and encumbrances", approved by the Cabinet of Ministers of Ukraine of 22.06.2011 № 703 (hereinafter – the Procedure), is carried out by public registrars and notaries in accordance with these regulations.

For the state registration of rights to real estate stakeholders (owner (s), other legal successor (s) Party (ies) of the transaction, under which arose ownership or other proprietary right), submit to the state registrar (notary) at the location of real estate documents confirming emergence, transfer or termination of ownership and other real rights to immovable property and other documents specified by the Procedure.

In accordance with paragraph 27 of the Procedure, the documents proving emergence, transfer or termination of ownership and other real rights to immovable property are: concluded in accordance with the law contracts, certificate of title to the share of the marital property, certificate of inheritance, certificate of title to real property, the act of state for ownership of land or the right of permanent use of land, inheritance and so on, as defined by paragraph 27 of the Procedure.

"Primary" registration of title to real estate, i.e. registration of rights to newly constructed immovable property (houses, apartments), newly formed land plots and other real estate rights (including "secondary" registration of rights to immovable property) is performed by registrar of rights.

The state registrar at the location of the newly built real estate object (house or apartment), newly formed land plot, at the request of the person concerned registers title to real property by making an entry in the State Register of Rights and to confirm registration activities conducted regarding acquisition of property rights issues final certificate of title to real property (ownership of the newly formed land plot is exercised after the state registration of land in the State Land Cadastre, under the law) to the concerned person).

It should also be noted that in accordance with paragraph 29 of the Procedure, for registration of newly built or renovated immovable property, the person concerned, in addition to the documents set out in paragraph 27 of the Procedure, delivers to the state registrar technical passport of this object.

"Secondary" registration of rights to immovable property, i.e. the state registration of transfer of ownership of real property under the law, deed, the order of succession, is carried out by notaries upon certification of competences by entering the data on acquirers of property rights (interested parties) into the State registry. In support of the acquirer's property rights (the person concerned) and the registration of ownership of real estate, the notary issues Extract from the State Register of Rights.

The notary performs a notarial act of certification of documents proving transfer of title to immovable property, conducts the state registration of transfer of title to real estate by entering data into the State Register of Rights, and issues Extracts from it (the Register), thus ensuring the functioning of procedure for registration of rights to immovable property under a "single window" principle.

Period of state registration of rights to immovable property (or rejection thereof), in accordance with Part 5 Art. 15 of the Law shall not exceed 14 (fourteen) working days after receipt by the state registrar (notary) of the application from an interested person, together with attached documents confirming the emergence, transfer or termination of title to immovable property, except for the state registration of property encumbrances, judgment of whose registration or refusal in registration, termination of encumbrances, is made on the day of application and the enclosed documents required for state registration of encumbrances by an interested person (Part 7 of Article 15 of the Law).

For the state registration of real estate rights the state fee is charged (Art. 29 of the Law), amount whose in accordance with paragraph "z" Art. 3 of Decree by the Cabinet of Ministers of Ukraine "On State Duty" is seven untaxed minimum incomes (119 UAH), and the fee for registration of other real right to immovable property, encumbrance on real estate right is three untaxed minimum incomes of citizens (51 UAH).

Law does not oblige persons, whose property rights and other rights are registered before 01.01.2013, to apply to the State Registrar (notary) to re-register property rights and other real rights to immovable property as prescribed by the law. If a person appeals for re-registration of rights to immovable property, the state fee, provided by law, is not collected.

Summarizing all the above, we should point to the main features of state registration of rights to immovable property and encumbrances according to the Law, such as:

1) state registration of rights to immovable property and encumbrances by state registrars and notaries (instead of the BTI powers regarding these registration activities);

2) state registration of transfer of title to immovable property by notaries under a "single window" principle (certification of transactions, state registration of rights by entering data into the State Register of rights issue of documents certifying the state registration of transfer of title to real property (Excerpts);

3) cancellation of mandatory technical inventory of immovable property at transfer of title to such immovable property on the basis of deed.

Judging from practical application of the Law to date we may distinguish such main features:

1) notaries, charged under the law with the duty of state registration of transfer of titles to real property, in most cases refuse to certify contracts on real property, as they bear personal (disciplinary, civil or criminal) liability for violation of legislation on state registration of rights;

2) due to the inconsistency of the procedure for data entry and maintenance of the State Register of Rights, registration by notaries of transfer of titles to real property is time-consuming, as notaries are forced to apply to public registers for advice and guidance on the procedure of registration in each case of certification of contracts;

3) notaries as subjects of registration of title to immovable property, provide a variety of services, apart from certification of contracts, state registration of rights and the issuance of Exerpts. Taking into account the previous two paragraphs, it is certain that the cost of notary services for registration of rights to real property will grow;

4) cancellation of mandatory technical inventory of immovable property at transfer of ownership under contract is not seen by many practitioners as a good thing, as technical description of real property issued by the competent authority, is an important sign of the corresponding real property, specified in such certificate of technical inventory in the amounts and outlined on the plan scheme at the specified address and with a defined nominal value of such immovable property;

5) given the preceding paragraph, lawyers advise when purchasing immovable property to demand technical inventory certificate, yet to date, the question remains as to who can issue such certificates, as even the BTI has not received the license to conduct technical inventory of real property;

6) we should also note the peculiarity of transfer of title to immovable property, registered before 01.01.2013, as the possibility of such actions is available only after state registration of immovable property by a notary public in the State Register of rights in the manner prescribed by law.

Therefore, so far it is too early to make conclusions regarding the simplified procedure of state registration of rights to immovable property and encumbrances in connection with the entry into force of the Law and attendant normative legal acts.