Semenkа E.N. The contract of rent a building or other capital construction under the civil legislation of Ukraine. – Manuscript.
The thesis for obtaining of the degree of Candidate of Legal Sciences, specialty 12.00.03 – Civil Law and Civil Procedure; Family law; Private International Law. – National University «Odessa Law Academy», Odessa, 2018.
This thesis is the first special comprehensive study of theoretical and practical problems of the contract of rent a building (construction) in the domestic science of civil law in accordance with modern civil legislation of Ukraine.
The thesis describes the genesis of the contract of rent a building (construction), reveals the regularities of its development, defines concepts and features. The description of buildings (construction) as the subject of the contract of rent a building (construction) is given. A circle of possible subjects of legal relations arising from the contract of rent of a building (construction) is revealed. The essence and peculiarities of the state registration of the right to use immovable property, which arises on the basis of the contract of rent a building (construction), is revealed. Considered the range of essential terms of the contract of rent a building (construction). The components of the rent according to the contract of rent a building (construction) and features of its calculation are determined. The rights and obligations of the parties in this contract are described. The features of the rights of the tenant on the land plot during rent of the houses and other capital structures are revealed. The grounds, procedure and legal consequences of termination of contract of rent a building (construction) are considered.
It is determined that a contract of rent a building (construction) is a special type of contract of lease. Qualifying signs of contract of rent a building (construction) are the subject and form of the contract. The peculiarity of the subject of contract of rent a building (construction) is that buildings or other capital constructions are objects of real estate and require the establishment of special legal regulation of relations arising in the process of their use. A contract of rent a building (construction) for a term of three years or more is object to a notarial certificate (Part 2 of Article 793 of the Civil Code of Ukraine). The right to use immovable property, which arises on the basis of a contract of rent a building (construction), concluded for a term of not less than three years, shall be subject to state registration in accordance with the law (Article 794 of the Civil Code of Ukraine).
The contract of rent a building (construction) is considered in the civil law of Ukraine as a type of lease agreement primarily due to features of the leased property: buildings and constructions that belong to the category of real estate (Part 1 of Article 181 of the Civil Code of Ukraine). The peculiarity of the contract of rent a building (construction), firstly, is that, at the same time as the right to rent a building (construction), the tenant is entitled to use the land on which they are located, as well as the right to use the land plot adjacent to the building or construction, in the amount necessary for the purpose of rent (Part 1 of Article 796 of the Civil Code of Ukraine). Secondly, not every real estate, but only such a kind as a building or other capital construction (their separate parts), can be the subject of a contract of rent, which is regulated by paragraph 4 chap. 58 of the Civil Code of Ukraine. Thirdly, the object of this contract is not a building or other capital construction for residential purposes (residential buildings).
The contract of rent a building (construction) is a legal entity, which entails the simultaneous occurrence of two types of relations: relations on the temporary possession and use of the building (construction) and relations regarding to the use of part of the land occupied by such an object of real estate and necessary for its use.
It is proposed to recognize non-residential premises as independent objects of the real estate, which may also be an independent object of lease relations with the distribution of the norms of paragraph 4 of chap. 58 of the Civil Code of Ukraine regarding the rent a building (construction). In order to eliminate different approaches in law practice to describing the relations of hiring non-residential premises, it is proposed to change the title of paragraph 4 of chap. 58 of the Civil Code of Ukraine «Rent a building or other capital construction» for the title «Rent a building or other capital construction (non-residential premises and other separate their parts)».
It is noted in the paper that the law does not link the validity of the of rent a building (construction) with the fact of state registration of the right of use immovable property, which arises on the basis of this contract. In case of prolongation of the contract of rent a building (construction) on the basis of Art. of the Civil Code of Ukraine, concluded for a period of less than three years, such a contract can not be considered insignificant in the absence of its notarial certificate and state registration of rights.
It is concluded that the contract of rent a building (construction) always has the provisions about of use of land on which buildings (constructions) are located, and, therefore, the contract of rent a building (construction) is mixed with the contract of lease of land. In accordance with Clause 3 of Part 1 of Art. 15 of the Law of Ukraine «On land lease» the essential condition of the land lease agreement is the condition of the rental paiments. Therefore, the condition about rental paiments in the contract of rent a building (construction) is not an essential condition only in the case of the transfer of a building (construction) to a lease with the condition of the free use of the land on which they are located.
It is stated in the work that in the contract of rent a building (construction) the primary obligation of the landlord is to transfer the thing. Transfer of a building (construction) and acceptance of this object is carried out on the basis of an act of acceptance-transfer, which is signed by the parties. In addition, it was proposed to foreseen in Part 4 of Art. 13 of the Law of Ukraine «On lease of state and communal property» the obligation of parties to the lease contract of state and communal real estate to sign an act of acceptance-transfer of the object of lease at the conclusion and termination of the contract, indicating in it the status of the object of lease.
The contract of rent a building (construction) is bilaterial and synallagmatic. Thus, according to Part 2 of Art. 776 of the Civil Code of Ukraine, major repairs of things transferred to rent are carried out by the lessor at his expense, unless otherwise provided by the contract or by law. In accordance with Part 1 of Art. 776 of the Civil Code of Ukraine, a contract of rent a building (construction) may provide for the owner to carry out a current repair of the building (facilities). The definitions of capital and current repair are proposed.
Since the contract of rent a building (construction) is a consensual agreement, the employer must, first of all, accept the property, which is transferred under the lease contract. The law does not specify the consequences of the groundless refusal of the tenant to accept the object of the contract, and therefore, it is proposed to establish the responsibility of the renter for not accepting the property for use in a consensual contract of rent in the form of compensation for losses associated with non- acceptance of the property without valid reasons. Other main responsibilities of the tenant are described. It is noted that the tenant regarding the use of the land plot is in legal relations with the landlord solely, and his rights and obligations related to the use of the land plot are part of his civil legal relationship with the landlord, which arose on the basis of the contract of rent a building (construction).
The scientifically substantiated proposals on improving the legal regulation of the contract of rent of a building or other capital constructions under the civil law of Ukraine and recommendations for solving problems in law enforcement practice are formulated. In particular, the definition of the contract of rent a building or other capital construction (their separate parts) is formulated. Thus, under the contract of rent a building or other capital construction (their separate part), one party (the landlord, the lessor) transfers or undertakes to transfer to the other party – (the tenant, the lessee) for a specified period a building or other capital construction (their separate part) in use, and the tenant (the lessee) is obliged to accept this property and pay rent for it, provided by the contract or legal acts.
In the work it is established that objects of unfinished construction can be the object of various transactions, including the contract of lease, but in this case, the relevant relations are not regulated by the special rules of paragraph 4 of Chap. 58 of the Civil Code of Ukraine regarding the rent a building or other capital construction.
The author argues that, the rule of Art. 793 and Art. 794 of the Civil Code of Ukraine about a notarial certificate of a contract of rent a building (construction) and state registration of the right to use immovable property arising on the basis of this contract for a term of three years or more, the term should be recognized as an essential condition of this contract.
The research substantiates that the rules of paragraph 2 of part two of the Art. 763 of the Civil Code of Ukraine regarding the possibility of refusal at any time from an contract concluded for an indefinite period do not apply to a contract of rent a building (construction).
The author proposes to supplement Art. 765 of the Civil Code of Ukraine, by the part two of the following: «2. In the case of a groundless refusal to accept the object of lease, it is obliged to compensate the owner the damage caused by the delay as a result of the rejection of this property».
It is proposed to make changes to Art. 773 of the Civil Code of Ukraine, by supplementing part one of this article with the sentence of the following: «In the case when non-use of a thing can lead to its destruction or depreciation, this use is the responsibility of the tenant». It is also proposed to supplement Art. 795 of the Civil Code of Ukraine, by part three of the following: «In case of non-use of a building (construction), the landlord has the right to demand termination of the contract of lease and compensation for the damage caused by non-execution by the tenant of the current repair of the building (construction)». Also, the author proposes to exclude part six of the Art. 19 of the Law of Ukraine «On the lease of state and communal property», which contains provisions on the possibility of collection of indebtedness on a rent in an unconditional manner on the basis of the notary’s executive inscription. It is grounded, in addition, to exclude from part one of Art. 6 of the Law of Ukraine «On the lease of state and communal property» the provision on compulsory registration of an physical person who wishes to conclude a lease of state property as an entrepreneur.
During the research, it was found that the tenant has the right to undertake not any repair, but only such, which does not allow to use of things in accordance with the purpose and terms of the contract of lease. In the event of a dispute, the obligation to prove the need for capital repair and its cost is borne by the tenant.
The paper substantiates the provision that non-payment for the use of property should be the basis for termination of the contract of lease, and not the refusal from the obligation of lease.
The author determines the necessity to establish in the civil law of Ukraine the maximum term of the contract of rent a building (construction). Considering the inextricable connection of the contract of of rent a building (construction) with the lease agreement of the land plot on which it is located, it is established that the maximum term for the rent a building (construction) can not exceed 50 years (part 4 Article 93 of the Land Code of Ukraine).
Key words: contract of rent a building or other capital constructions, building, construction, civil legislation of Ukraine, real estate, form of contract, essential terms of the contract.
http://dspace.onua.edu.ua/bitstream/handle/11300/10505/%D0%A1%D0%B5%D0%BC%D0%B5%D0%BD%D1%8C%D0%BA%D0%B0%20%D0%9E.%D0%9C.%20%D0%B4%D0%B8%D1%81%D0%B5%D1%80%D1%82%D0%B0%D1%86%D1%96%D1%8F.pdf?sequence=3&isAllowed=y
