Some Aspects of State Registration During Martial Law

It is known that since the beginning of martial law in the state, the State Register of Real Rights to Immovable Property has been blocked, which made it impossible to carry out transactions with immovable property. In addition, the functionality of the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations has been limited. It is necessary to resolve issues related to state registration during this difficult period.

Resolution of the Cabinet of Ministers of Ukraine of March 6, 2022 No. 209 “Some Issues of State Registration During Martial Law and Amendments to the Resolution of the Cabinet of Ministers of Ukraine of February 28, 2022 No. 164” identified the following features of registration actions (the main ones are provided below):

• state registration shall be carried out exclusively by state registrars of legal entities and individual entrepreneurs, state registrars of real rights to immovable property and their encumbrances, officials of the Ministry of Justice, its territorial bodies, included in the list of state registrars and officials approved by the Ministry of Justice (hereinafter referred to as the “List”), to which access to the State Register of Real Property Rights and/or the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations is provided by the state for the period of martial law. The List may provide for restrictions (conditions) of conducting (acceptance) of registration actions (decisions on state registration of rights) included in it by state registrars and officials.

As of today, such List has not been published yet. 

• It will be possible to send documents for state registration of legal entities, individual entrepreneurs and public formations by e-mail or by other means of communication in electronic form. Such documents shall be created in compliance with the requirements of the legislation in the field of electronic trust services and the legislation on electronic documents and electronic document management.

In addition, registration can be done on the basis of electronic copies of documents in paper form, which shall be signed with a qualified electronic signature (for example, scanned copies). This way may be more appropriate and easier to use for individuals and legal entities.

• State registration shall be carried out immediately after all necessary documents are received. In case of providing an incomplete set or improper execution of documents, the applicant is informed orally (or by e-mail, depending on the method of submission of documents) of the need to correct deficiencies.

• State registration shall be carried out regardless of the location of immovable property, location of legal entities, individual entrepreneurs or public associations, unless relevant restrictions (conditions) are provided for in the List.

• There is no administrative fee for state registration of charitable organizations, public associations, the subject of activity of which is assistance to the Armed Forces, other military formations, law enforcement (special) bodies, civil protection bodies, voluntary formations of territorial communities, other persons providing national security and defense, repulse and deterrence of armed aggression by a foreign state, as well as persons who have suffered or may suffer from such armed aggression.

• The payment of the administrative fee can be confirmed by an electronic copy (including a screen copy) of the relevant payment document.

• Requirements of the legislation concerning the need for notarization of the signature on the document for state registration shall not apply if such a signature is made in the presence of the state registrar, official with identification of the signatory on the basis of an identity document as established by the Law of Ukraine “On Unified State Demographic Register and Documents Confirming the Citizenship of Ukraine, Identity or Special Status”, unless the relevant restrictions (conditions) are provided by the List.

At the same time, we believe that this provision needs to be finalized, as the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Associations” declares that, along with notarization of authenticity of the signature on the document, it is also required to execute such a document on a special notarial blank (such as protocol on amendments to the information about the LLC, transfer deed, distribution balance, etc.). Based on the wording of the government resolution, this requirement has not been abolished. This means that participants of a legal entity may not apply directly to a state registrar without prior application to a notary. However, law enforcement practices may take a different path, more business-friendly one; time will tell if this is the case.

• Documents for state registration of the creation of public formations, except for public associations, are not accepted, and consideration of previously submitted documents shall be suspended for the duration of martial law.

In addition, the above-mentioned government resolution also supplemented the Resolution of February 28, 2022. No. 164 “Some Issues of Notary during Martial Law” with the following provisions:

• certification of powers of attorney and wills, certification of authenticity of signatures on documents are carried out without the use of special forms of notarial documents on white sheets of paper with computerized details of the notary: image of the State Emblem of Ukraine, surname, first name, patronymic (if any), name of the state notarial office (for a state notary), number of the certificate of the right to engage in notarial activities, workplace address, telephone number, e-mail address.

• for the duration of martial law, the period for acceptance of the inheritance shall be suspended.

At the same time, we consider it necessary to enshrine this provision in law by making appropriate amendments to the Civil Code of Ukraine, as Art. 1270 of this Code determines the period for acceptance of the inheritance as six months from the time of opening of the inheritance.

• The right of commanders (chiefs) of military formations or other persons authorized by them to certify powers of attorney, except for powers of attorney for the right to dispose of immovable property, manage and dispose of corporate rights and wills of servicemen, law enforcement officers (special) bodies, civil defense bodies through the General Staff of the Armed Forces, the Ministry of Defense, the relevant law enforcement (special) or other body, with their further transfer to the Ministry of Justice or its territorial body in order to ensure their registration by notaries in the Unified Register of Powers of Attorney and Inheritance Register, has been established.

Relevant changes are valid until the abolition of martial law.