Thus, in accordance with part 1 of article 377 of the Civil Code of Ukraine, to the person, who has got the ownership right to an apartment house (except for multi-apartment), the building or a construction, passes the ownership right, the right of use the land on which they located, without changing its designated purpose to the extent and under the conditions laid down for the previous landowner (land user). Part 2 of the cited article establishes that the size and a cadastral number of the land plot, the right on which passes in connection with the transition of the ownership right to an apartment house, a building or construction, are essential terms of the agreement under which the acquisition of ownership of these objects is performed.
This approach is supported by article 120 of the Land Code of Ukraine (LC of Ukraine) and article 7 of the Law of Ukraine "On Land Lease" (the Law on Lease).
In addition to the above, article 31 of the Law on Lease establishes that a land lease agreement is terminated in case of purchasing the property of an apartment house, a building or construction, located on the land plot rented by another person.
Thus, the legislator puts the termination of the lease of land plot in direct dependence on the transfer of ownership right to the property located on such a plot. And here an important question arises: does the new owner automatically receive rights of ownership (use) of such a land plot?
To this question tried to answer the Supreme Economic Court of Ukraine in its Resolution of 9 July 2015 in the case № 910/23058/14, where has specified:
«"According to part 3 of article 7 of the Law on Lease, a person who has acuired ownership right to a residential house, building or construction located on a leased land plot also acquired the right of the lease to this land plot. By the agreement providing for the acquisition of the right of ownership of a residential house or construction, the lease agreement of the land plot is terminated in part of the lease by the previous tenant of the land plot on which such a house, building or construction is located.
Thus, the cited provisions should be understood in such a way that when another person has ownership of a residential house, building or construction, the right of the previous owner or user is terminated, by law, without formalizing the termination of such right by any acts and documents. It is necessary to note, that this provision is imperative and deviation from it on the basis of the agreement is not allowed. The lease agreement is not terminated as a whole, but is terminated in part of the lease by the previous tenant of the land plot.".»
Later, such an approach was supported, for example, by the Kiev Appeal Administrative Court in the Ruling of June 26, 2017, in case No. 823/1456/16.
However, modern judicial practice, unfortunately, has moved away from the above position. This is due to the fact that the norms of the LC of Ukraine do not allow the automatic transfer of ownership (use) to the property to the buyer, but still make such a transition dependent on bureaucratic procedures: the Ukraine Land Code contains controversial provisions that do not allow the new property owners to avoid a long procedure of renewal of the right of use (ownership) of a land plot. We are talking about the article 116 of the Land Code of Ukraine, which establishes that citizens and legal entities shall acquire the right of ownership and right to use land plots from state or municipal property by the decision of the executive or local authorities within their authority, or by auction results. Land plots owned or used by citizens or legal entities are transferred into ownership or use by the decision of executive or local authorities only after the termination of the right to own or use them in the manner prescribed by law.
The above means that when purchasing property, the buyer obtains only the right on the land, which he implements in the general manner determined by law.
It is necessary to note, that such conclusions are confirmed by the opinion of the Supreme Court of Ukraine, which it provided for in the Resolution of 12 September 2018 in case No. 686/23225/16-c, namely:
«“As follows from the provisions of article 120 of the Land Code of Ukraine, the occurrence of the ownership does not constitute a basis for the automatic occurrence of the ownership or the conclusion (extension, renewal) of a land lease agreement.
At the same time, within the meaning of article 125 of the Land Code of Ukraine, the right of the ownership of a land plot, the right of permanent use and the right to lease a land plot arise from the moment of state registration of these rights.
Despite positions of the present article, the new owner of the land plot is not exempt from indispensability of registration of the right on the land plot according to requirements of the legislation.
Summarizing the above, the court comes to the conclusion about a cancelling of the decisions of the court of the first and appeal instance because the courts have incorrectly applied provisions of the substantive law, and came to the erroneous conclusion that fulfilment of actions on registration of the land rights is the right and not an obligation. Acquiring by the person of immovable property, located on the land plot, corresponds the obligation to register the right to the land plot on which such property is located.”»
As a conclusion it should be stressed, that, unfortunately, according to the legislation of Ukraine and law enforcement practice relevant at the moment, the occurrence of the ownership right to object of the property is not the basis for automatic occurrence of the ownership right or making(extension, renewal) of the land lease agreement. The ownership right to the land plot, the right of permanent use and the right to lease a land plot arise from the moment of the state registration of these rights. The new user (or the owner) of a land plot is not exempt from indispensability of registration of the right on the land plot according to requirements of the legislation.
