PROBLEMS OF DETERMINING THE LEGAL FATE OF LAND PARCELS, WHOSE OWNERS DIED

Анотація

PROBLEMS OF DETERMINING THE LEGAL FATE OF LAND PARCELS, WHOSE OWNERS DIED

Kovalenko T. O.

 

Abstract: This article explores the requirements of Ukrainianland and civil legislation, which determines characteristics of the transfer to communal ownership of land parcels, whose owners are deadbut parcels are not transferred to heirs by will or by law because of their absence, removal of inheritance right, rejection of their heritage, as well as the rejection of its adoption.Positive and negative aspects of the Law of Ukraine «On Amendments to Some Legislative Acts of Ukraine Regarding Legal Fate of Land Parcels, whose Owners Died», dated September 20, 2016, are discovered.

Keywords: land parcel; inheritance of land parcel; escheat; communal ownership of land.

Problems of transfer of rights to land parcels, whose owners have died, urgently needed legislative regulation. This is especially noticeable now, in the conditions of the next extension of the moratorium on alienation of land parcels owned by individuals and legal entities for agricultural commodity production.

In September 2016 the Parliament of Ukraine has made a number of changes to the Land Code of Ukraine on October 25 2001, the Civil Code of Ukraine on January 16, 2003, the Civil Procedural Code of Ukraine on March 18, 2004, Laws of Ukraine «On Land Lease» as amended on October 2, 2003, «Оn State Registration of Civil Status» on July 1, 2010, «On State Land Cadastre» on July 7, 2011, «On Court Fee» on July 8, 2011, «On State Registration of Rights to Real Estate and their Encumbrances» as amended on November 26, 2015 to determine the legal fate of land parcels, whose owners have died. These changes became effective on October 19, 2016.

It is possible in general positively assess the Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine Regarding the Legal Fate of Land Parcels whose Owners Died» of September 20, 2016, provisions of which greatly simplify the procedure of transfer of land parcels, heirs of which are missing, to communal property as escheat.Positive aspects of the mentioned Law include the following:

- reasons for the acquisition of communalownership on land by territorial communities were supplemented by such reason as «transition in communal ownership of land parcels, recognized as escheat by the court»;

- legal actions relating to the acquisition and registration of communal ownership on property, including land parcels, are committed not by the place of inheritance opening, but by the place of real estate location;

- land parcels, recognized as escheat by the court, becomes property of territorial community based not on the place of inheritanceopening, but based on the location of such land parcels;

- local governments are exempted from payment of court fee for filing an application for recognition of heritage as escheat in the proceedings in all courts;

- applications on acknowledgment of heritage as escheat, if such heritage consists of agricultural lands, may be filed by owners or users of adjacent land parcels;

- persons, who are entitled or required to apply for the recognition of heritage as escheat,receive the right to obtain free information from the State Register of Civil Status of Citizens about the state registration of the facts of citizens death;

- features of formation of land parcels, which heirs are absent or did not receive the inheritance, have been clearly regulated in the legislation;

- legislation has regulated the procedure for taking measures to protect the ancestral property, which heirs are absent or did not receive the inheritance, to save such property before the court decision on acknowledgment of heritage as escheat gain legal force. In the absence of heirs or testamentary executor, person that manages heritage, which includes land plots, becomes rural, village or city council at the location of such land plot;

- the principle of unity of legal fate of land parcel and of located on it movable property is implemented in land legislation;

- the Law of September 20, 2016regulates peculiarities of implementation of land lease rights to land parcels, which heirs are absent or did not receive the inheritance.

However, certain legal defects of the recognition of land parcels as escheat still remains, such as establishing of legal mechanisms to promptlocal governments to apply to the court for the recognition of land plots as escheat, expanding of the range of subjects, who are entitled to obtain extracts from the Inheritance register. Such legal defects should be eliminated by making changes and amendments to land and civil legislation.