№4(15)(2013)

For the person interested in getting estate in form of land or property from grandparents or parents, an issue is always relevant.

According to Article 14 of the Constitution of Ukraine, the land is a major national wealth that is under special state protection. Title of property for land is guaranteed. This right shall be acquired and implemented by citizens, legal entities and the state only in accordance with law.

From 1917 to 1990 the land was owned by the state and given to citizens of the Soviet Union only for use. Transferring it to use was provided through disposal on the basis Decision of USSR Council of Ministers or the Executive Committee of regional, district, city, town, village councils.

From 1990 to 2001 the forms of land ownership were defined: state, collective, private. In addition, the land was given to use.

In accordance with Section 7 of the Transitional Provisions of the Land Code of Ukraine, regardless of when appeared the ownership or use title for land, it is preserved. However, let’s note that according to Part 1 of art. 1225 of the Civil Code of Ukraine, heirs through inheritance on a general basis only get ownership on land, with preserving its purpose. The right to use land can not be inherited.

Quite frequent are cases where decedents do not leave documents of title on land after death or had no time to prepare all necessary documents while living (land ownership occurs after the state registration). During court hearing the proceedings, the court will examine legality of grounds for right on land and take into consideration decision of executive body on technical documentation and ability to confirm controversial circumstances with eyewitness testimony.

Real estate is not the least attractive in estates. I propose to consider the most common problems that occur in succession buildings, where the main role is played by the fact if they are legally or illegally constructed.

Under current law, legal construction involves building, started and finished:

1. on land that is assigned for this purpose (owned by right of ownership or right of use of the person-builder, its purpose allows for implementation of construction);

2. if properly is approved with project construction;

3. in presence of proper authorization, if necessary – to obtain such a permit;

4. if building regulations were complied with.

Certificate of title serves as document of title on facility of completed construction. If owner of a completed construction project, due to death can not get a certificate of ownership, heirs will have to apply to court for recognition of their rights to inherit property. Recognition of this right is possible if testator has a legal construction, object of which was put into operation.

When considering this type of case also question on legality of building on land will be investigated that is to be installed that land was provided for construction and which is confirmed with documents.

So, very often, in practice, the question arises as to prove legality of construction on land, as in Soviet times, usually decision to grant land for construction is not taken in isolation, but in decision to grant permission for construction of buildings only indicated the land on which construction will take place. There are many cases where construction was carried out on land, made available for use, and in succession to question may arise inheritance for land, but not for building, which are the title documents. As noted above, the right to use land is not subject of estate for inheritance.

Very often people do not think about documentary fixing their rights until there are controversial issues, and in some cases such relationship ends with refusal to recognize ownership of hereditary property.

Relevant for present case, when construction is over, people are living in house, but do not hurry with putting it into operation. According to par. 1 part 3 art.331 of the CC of Ukraine before finishing construction (creation of assets), a person shall be considered an owner of materials and equipment that were used during construction (development property).

In court you can use the right to recognize as heir - person, who obtained rights and obligations of developer under par. 1 part 3 art. 331 of the CC of Ukraine.

For exercising this right a set of evidence in support of legal construction of unfinished building will be crucial, namely decision of executive committee of city (town) council to provide land for construction from explanatory note to project on land development, act draws a nature of land boundaries of buildings division. Decree of the Supreme Court of Ukraine from 30.05.08 #7 defines as follows: if construction was carried out in accordance with law, in case of death of builder before construction is completed, his rights and obligations, as developer, are part of heritage.

Let’s consider the question that is painful for many: illegal or unauthorized construction.

Construction is illegal, which in accordance with Part 1 art.376 of the CC of Ukraine is called unauthorized. This is a construction that meets the following criteria:

1. constructed or is under construction on land that has not been set aside for this purpose in prescribed manner;

2. absence of a proper building permit;

3. without duly approved project for construction;

4. construction with substantial violation of rules and regulations.

Each sign is autonomous and sufficient that construction was considered illegal (unauthorized). It is worth noting that unauthorized construction was not acknowledged in the past. Thus, the CC of USSR from 1963 in art 105 defined consequences of unauthorized construction of house. A citizen who built a house or part of it (extension) without set permission, or without properly approved project, or with serious violation of basic building codes, do not have right to dispose this house or outbuilding (sell, donate, lease, etc.).

In accordance with Part 2 art.376 of CC of Ukraine - a person who has made or makes unauthorized construction of immovable property does not acquire title to it. However, p.3 art.376 of CC of Ukraine provides that ownership of illegally built property can be recognized by court by person who made unauthorized construction on land not designated for that purpose, if the person was provided with permission on land areas as appropriate under already constructed real estate property.

Thus, court can recognize ownership of such object if right on land was documented on testator, in case of eliminating violations of building regulations (if available), payment of fines for illegal construction and obtaining technical passport.

If land is initially provided as appropriate for construction or was owned by decedent, after exclusion of other evidence of unauthorized construction, as discussed above, recognition of ownership on building will be fully justified.

According to the Decree #6 of the Supreme Court of Ukraine from 30.03.12, paragraph 14, under part 3 art.376 of CC, court may satisfy a claim for recognition of ownership on immovable property illegally built on land that was not provided to property or use of person who built it, if it is in accordance with law that land was given in ownership or use for already constructed real property in accordance with its purpose, and provided that construction was carried out in compliance with the architectural, construction, sanitary, environmental and other rules and regulations under law, urban planning and design documents, and if these factors were considered by competent public authority.

Court may accept ownership of illegally built property also for person who built it, if, after completion the land was transferred to person in possession or provided for use, or if the owner of land on which property is located, signed superficies agreement (part 1 art.413 of Civil Code of Ukraine), in accordance with its purpose. Providing land for already built property or signing superficies contract may occur as before claim to court and after.

Of course, these examples are not exhaustive, since each heir has own history of rights and confirmations. However, I hope that the above article warns on consequences of irresponsible property owners behavior before registration of property rights.