Recognition of property rights to an investment object, judicial practice (+ Template of a claim for recognition of property rights to an investment object)

The practice of buying property rights for a future apartment is quite widespread. Such a contract can be called an investment contract, a contract for the purchase and sale of property rights, a contract for equity participation, etc. At the same time, there are rare cases when the ownership of a person who has fully paid for his future apartment is not recognized or disputed.

The concept of property law

According to Art. 177 of the Civil Code of Ukraine , the objects of civil rights are things, including money and securities, other property, property rights, results of work, services, results of intellectual and creative activity, information, as well as other tangible and intangible goods.

Separate things, a set of things, as well as property rights and obligations are considered property as a special object (Part 1 of Article 190 of the Civil Code of Ukraine ).

According to Art. 316 of the Civil Code of Ukraine , the right of ownership is the right of a person to a thing (property), which he exercises in accordance with the law at his own will, regardless of the will of other persons.

The Supreme Court of Ukraine, in its decision dated January 30, 2013 in case No. 6-168цс12, determined that the property right, which can be defined as the "right of expectation", is a constituent part of property as an object of civil rights. A property right is a limited real right, according to which the owner of this right is endowed with certain, but not all, rights of the owner of the property, and which certifies the right of its owner to obtain the right of ownership of immovable property or other real right to the relevant property in the future.

Protection of property rights

According to Art. 328 of the Civil Code of Ukraine , the right of ownership is acquired on grounds not prohibited by law, in particular, from deeds. The right of ownership is considered legally acquired, unless otherwise directly follows from the law or the illegality of the acquisition of the right of ownership is not established by a court.

Ownership of a new thing manufactured (created) by a person is acquired by him, unless otherwise established by contract or law. A person who produced (created) a thing from his own materials on the basis of a contract is the owner of this thing. Ownership of newly created immovable property (residential buildings, buildings, structures, etc.) arises from the moment of completion of construction (creation of property). If the contract or law stipulates the acceptance of real estate for operation, the right of ownership arises from the moment of its acceptance for operation. If the right of ownership of immovable property is subject to state registration in accordance with the law, the right of ownership arises from the moment of state registration ( Article 331 of the Civil Code of Ukraine ).

At the same time , in accordance with the Procedure for commissioning completed objects, approved by Resolution No. 461 of the Cabinet of Ministers of Ukraine dated April 13, 2011 , the commissioning of completed objects, the construction of which was carried out on the basis of a construction passport, is carried out through registration by the relevant state architectural authority - building control on the basis of a declaration submitted by the customer about the facility's readiness for operation free of charge.

In accordance with Clause 78 of the Procedure for state registration of real property rights to immovable property and their encumbrances, approved by the resolution of the Cabinet of Ministers of Ukraine dated December 25, 2015 (as amended by the Resolution of the Cabinet of Ministers of Ukraine dated August 23, 2016 No. 553), for state registration of ownership of a separate individually determined immovable property (apartment, residential, non-residential premises, etc.), located in an object of immovable property, the construction of which was carried out with the involvement of funds of individuals and legal entities, the owner of such property submits the following documents: 1) a document confirming the acquisition of ownership by a person of the investment object assigned to the person, provided for by the law (investment agreement, equity participation agreement, property rights purchase and sale agreement, etc.; 2) technical passport for a separate, individually determined immovable property (apartment, residential, non-residential premises, etc.). In the event that a person purchases interest-free (targeted) bonds, for which the basic product is a real estate unit, the documents confirming the acquisition of ownership of the construction object secured by the person are the bond purchase and sale agreement and, if available, the document according to which the corresponding of the investment object by the owner of the bonds (reservation agreement, reservation, etc.).

Regarding the obligation to fulfill the terms of the contract

An obligation is a legal relationship in which one party (the debtor) is obliged to perform a certain action for the benefit of the other party (the creditor) (transfer property, perform work, provide a service, pay money, etc.) or refrain from performing a certain action (a negative obligation obligation), and the creditor has the right to demand from the debtor the fulfillment of his obligation. The obligation arises, in particular, from contracts and other transactions, must be based on the principles of good faith, reasonableness and justice ( Article 509 of the Civil Code of Ukraine ).

The contract is binding on the parties ( Article 629 of the Civil Code of Ukraine ).

On the basis of Art. 525 of the Civil Code of Ukraine, unilateral refusal of an obligation or unilateral change of its terms is not allowed, unless otherwise established by contract or law.

According to the rules of Art. 526 of the Civil Code of Ukraine, the obligation must be properly fulfilled in accordance with the terms of the contract and the requirements of this Code , other acts of civil legislation, and in the absence of such conditions and requirements - in accordance with the customs of business turnover or other requirements that are usually set.

The debtor is obliged to fulfill his obligation, and the creditor - to accept the fulfillment personally, unless otherwise established by the contract or law, does not follow from the essence of the obligation or customs of business turnover ( Article 527 of the Civil Code of Ukraine ).

According to Art. 610 of the Civil Code of Ukraine , a violation of an obligation is its non-fulfillment or fulfillment in violation of the conditions determined by the content of the obligation (improper fulfillment).

According to Art. 530 of the Civil Code of Ukraine   if a term (term) for its performance is established in the obligation, then it is subject to execution in this term (term).

Conclusions

Protection of property rights is carried out in accordance with the procedure defined by legislation, and if such a special procedure is not defined, protection of property rights is carried out on the general grounds of civil legislation.

The investor, as a person for whose funds and on the basis of the contract with which the investment object was built, is the person who acquires the initial right of ownership of the newly created investment object.

After fulfilling the conditions of investment, the investor acquires property rights (identical to ownership) to this object and after the completion of the construction of the real estate object acquires ownership rights to the investment object as the original owner by conducting state registration of property rights to the specified object for himself .

In the case of non-fulfillment by the developer of properly assumed obligations, taking into account full and timely payment for property rights, an effective way to protect the violated rights is the recognition of property rights to the investment object.

These are the conclusions reached by the Grand Chamber of the Supreme Court in its the resolution of September 14, 2021 in case 359/5719/17 (proceedings 14-8 cs 21).

In addition, the Supreme Court in its decision dated December 21, 2022 in case No. 569/5399/20 (proceedings No. 61-7682св21) noted that in the event of failure by the developer to properly fulfill the obligations assumed , as well as the absence of the fact of entering the building into operation, taking into account the full and timely payment of share contributions by the construction participant, an effective way of protecting the violated rights of the latter is the recognition of property rights to the investment object.

It is convenient to create a statement of claim on the recognition of the property right to the investment object , you can in the Instaco designer by following the link . To create, you only need to enter the necessary data in the designer.