Sharapova svitlanaacurrent legal issues of land lease in modern conditions

Abstract

Problem setting. In the context of land market turnover, land legislation is gradually changing and improving. Despite the emergence of such types of land use such as emphyteusis and superficies land lease remains the main type of land use. Meanwhile, recently, there have been rules that regulate in detail regulating the sublease of land plots in detail, provide for the specifics of renewal and exercise of the lessee’s preemptive right to entering into a land lease agreement, as well as establish the lessee’s pre-emptive right to purchase land plots for agricultural purposes. agricultural land plots. Therefore, we pay special attention to certain legal issues of contractual land use under lease with a view to further improving of the land legislation of Ukraine. Purpose of the research is to study and substantiate a set of pertinent issues related to the leasing of land plots in contemporary conditions. It seeks to identify complex and ambiguous issues within the judicial practice of the Supreme Court and to provide recommendations for the improvement of land legislation in this area. Analysis of recent researches and publications. The theoretical issues surrounding land use under lease conditions during the period of market circulation of land plots, as well as the specificities of the emergence, alteration, termination, and renewal of lease relations, have been central to the work of scholars such as V.I. Andreitsev, R.M. Hnidan, N.V. Ilkiv, I.I. Karakash, P.F. Kulynych, N.R. Kobetska, A.M. Miroshnychenko, M.V. Shulha, and others. However, issues concerning the legal definition of the right to lease land plots, the peculiarities of renewing lease relations in contemporary conditions, and the exercise of pre-emptive rights by lessees to purchase agricultural land have remained insufficiently studied and addressed both theoretically and practically. Аrticle’s main body. The first topical issue is the legal definition of the right to lease a land plot. The lessee has two powers: possession and use. Meanwhile, this concept of the right to lease land plots does not correspond to the current legislation in the contemporary conditions. In the literature, it has been emphasized that there are currently two legal models for implementing the sublease of land plots: the first model requires the mandatory consent of the owner, while the second grants the lessee the right to independently decide on the sublease of the land. The second legal model of land sublease is affirmed in the context of leasing land plots located within agricultural land arrays and does not require the consent of the lessor. The initiator of the industrial park also has the right to sublease the land plot or its parts without prior approval of the lessor. Thus, the analysis of the land legislation on land sublease allows us to assert that, in contemporary conditions, the lessee of a land plot also holds the right of disposition, which is limited. Secondly, the issues related to the exercise of the lessee’s preemptive right to renew land lease agreements remain relevant. Currently, the law clearly distinguishes between the concepts of “renewal of a land lease agreement” and “the lessee’s preemptive right to enter into a land lease agreement for a new term”. The Supreme Court emphasizes that the lack of distinct legal provisions that clearly differentiate the application of laws regarding the “renewal of a land lease agreement”, as the meaning of this term significantly varies depending on the version of Article 33 of the Law of Ukraine “On Land Lease.” Moreover, it is important to note that according to the previous version of Article 33 of the Law of Ukraine “On Land Lease”, it was required to send a draft additional agreement to the lessor, while the current version stipulates the necessity of sending a draft land lease agreement. Unfortunately, this issue has not been separately resolved by the Supreme Court. Thirdly, there are problems with the application of Article 130-1 of the Land Code of Ukraine, which stipulates that tenants of agricultural land plots have a preemptive right to purchase such plots and are second priority. The legislation also sets out the procedure for exercising the preemptive right to purchase agricultural land and the possibility of transferring this right to another person. The case law of the Supreme Court regarding the exercise of the lessee’s preemptive right to purchase a land plot, transfer of this right to another person and application of appropriate remedies to protect the lessee’s rights is gradually being formed. The author analyzes the legal opinions of the Supreme Court which ensure uniform application of Article 130-1 of the Land Code of Ukraine. Conclusions and prospects for the development. The current land legislation allows tenants to exercise a limited right to dispose of the leased land plot, and therefore they have the right to own, use and dispose of the land plot limited by the rules. Ukrainian legislation needs to be amended to provide a legal definition of the right to lease a land plot. The court practice regarding the renewal of land lease agreements and the exercise of the preemptive right to enter into a new lease agreement has actually already been formed. Meanwhile, certain issues require additional discussion and reflection. Thus, the judicial authorities need to adopt additional legal opinions in order to correctly apply the legal provisions of Article 33 and the Transitional Provisions of the Law of Ukraine “On Land Lease”. The Supreme Court is gradually developing the practice of applying Article 130-1 of the Land Code of Ukraine. Therefore, in our opinion, the main issue of judicial practice in the future should be the proper implementation by land owners, tenants, notaries, and other entities of the requirements of Article 130-1 of the Land Code of Ukraine to ensure the exercise by the tenant of the preemptive right to purchase agricultural land.