Opportunities for Concluding Immovable Property Alienation Agreements Are Now Available

Опубликовано: 18.05.2022

We continue to inform you about news in the field of state registration of legal entities and individual entrepreneurs, rights to immovable property and the work of notaries in wartime. The Cabinet of Ministers of Ukraine has recently adopted the Resolution of April 19, 2022 No. 480 “On Amendments to Certain Resolutions of the Cabinet of Ministers of Ukraine on the Activities of Notaries and the Functioning of Unified and State Registers Held by the Ministry of Justice under Martial Law”. In accordance with this legal act, under martial law and within one month from the date of its termination or cancellation, notarial acts shall be performed taking into account the following features (prohibitions):

  1. It is now possible to enter into contracts for valuable property, including immovable property

Notaries included in the list approved by the Ministry of Justice have the right to notarize:

– agreements on alienation, division (separation) of real estate;

– inheritance agreements;

– mortgage agreements;

– agreements on replacement of the creditor (assignment of claims) under the loan agreement and/or mortgage agreement, satisfaction of the mortgagee’s claims;

– agreements on the establishment of trust ownership of real estate;

– agreements on determining the size of shares in the right of joint ownership;

– agreements on the division of joint property of the spouses (separation from it);

– loans, rent (lease), leasing of a building or other capital structure (their separate part) for a period of not less than three years;

– alienation of securities, corporate rights, including agreements on amendments to such agreements or their termination (suspension);

– powers of attorney for the right to dispose of real estate, management and disposal of securities, corporate rights, the right to access an individual bank safe;

– certification of the authenticity of the signature on the acts of acceptance and transfer of the share (part of the share) in the authorized (composed) capital (authorized fund) of the legal entity;

– issuance of certificates of ownership of the share in the joint property of the spouses (one of former spouses) on the basis of their joint application, certificates of acquisition of property from public auction (electronic auctions), including those that did not take place.

  1. The conclusion of agreements on valuable property shall not be carried out in territories where there is no access to state registers

Performing notarial actions on valuable property by notaries whose workplace (office) is located within the administrative and territorial unit, which is included in the list of administrative and territorial units approved by the Ministry of Justice, within which users access to unified and state registers held by the Ministry of Justice, is prohibited during martial law.

  1. Peculiarities of the notarization of real estate agreements are established:

– notarization of the agreement on alienation of real estate is prohibited until one month from the date of state registration of ownership of the alienator of real estate, except in cases of acquisition by the alienator of ownership by inheritance or as a result of determining the size of shares in joint ownership;

– notarization of agreements on alienation of real estate, securities, corporate rights, mortgages, satisfaction of mortgagee’s claims, establishment of trust ownership of real estate is prohibited, including agreements on amendments to such agreements or their termination (suspension), as well as notarization of the authenticity of the signature on the acts of acceptance and transfer of the share (part of the share) in the authorized (composed) capital (authorized fund) of the legal entity, which are concluded (signed) on behalf of the alienator (mortgagor, trust founder) on the basis of a power of attorney;

– notarization of the agreement on the alienation of real estate, mortgages, the establishment of trust ownership of real estate shall be carried out exclusively at the location of such property, except for the real estatelocated in the city of Kyiv or Kyiv region. Notarization of the agreement on the alienation of real estate, mortgages, the establishment of trust ownership of the real estate located in the city of Kyiv or Kyiv region shall be carried out exclusively by a notary, whose workplace (office) is located in the city of Kyiv or Kyiv region, at the location of such property, or at the location of a legal entity, or at the registered place of residence of a natural person – one of the parties to the relevant agreement.

 

  1. Notarial actions with the participation of citizens or legal entities of the Russian Federation shall not be carried out

Notarial actions at the request of citizens of the Russian Federation (except those residing in Ukraine legally), a legal entity established and registered in accordance with the laws of the Russian Federation, or a legal entity whose ultimate beneficial owner, member or participant (shareholder) is a citizen of the Russian Federation with a share in the authorized capital of 10 percent or more, except for those residing in Ukraine legally, or a legal entity established and registered in accordance with the laws of the Russian Federation are not committed, the notary shall decline them. Notarial actions which have been started but not completed shall be terminated.

This norm is valid until the adoption and entry into force of the law on the settlement of relations involving persons associated with the aggressor state and does not apply to notarial actions to notarize the authenticity of the signature on the application for renunciation of Russian citizenship and will of a prisoner of war.

  1. The following actions shall be carried out without the use of special forms:

– notarization of powers of attorney (except for powers of attorney for the right to dispose of real estate, construction in progress or property rights for future real estate, funds in accounts with banking and other financial institutions, as well as vehicles, for more than three months, management and disposal of securities, corporate rights, the right to access an individual bank safe);

– notarization of the authenticity of the signature on the application for a permit for temporary departure of a child abroad.

 

In addition to the above, the governmental decree has established a number of changes in the procedure for state registration of legal entities, individaul entrepreneurs and public formations and ownership of immovable property. In particular, it has been determined that during martial law and within one month from the date of its termination or cancellation, state registration shall be carried out/provided taking into account the following features:

  1. State registration shall be carried out by state registrars and notaries included in a special list of the Ministry of Justice.
  2. If a legal entity is registered within an administrative and territorial unit included in the list of administrative and territorial units approved by the Ministry of Justice, within which users’ access to unified and state registers held by the Ministry of Justice has been terminated, state registration shall be carried out regardless of the location of such legal entity.

III. State registration on the basis of documents for which the law requires notarization or certification of the signature shall be carried out by a notary only in the case of notarization of these documents (certification of the signature on them) by such notary, except the cases of transfer of corresponding statements/documents for state registration to them by the territorial body of the Ministry of Justice, as provided by law. Thus, the notary will be able to register the ownership of real estate only if they have certified the relevant agreement on the alienation of this real estate.

  1. The following state registration shall be prohibited:

1) property rights (trust property) on the basis of agreements on the alienation of immovable property, on the establishment of trust ownership of immovable property, including agreements on amendments to such agreements or their termination (suspension), concluded on behalf of the alienator (trust founder) on the basis of a power of attorney;

2) state registration of real rights to immovable property and their encumbrances on the basis of agreements certified by a notary in the period from February 25, 2022 to the date of their inclusion in the list of notaries;

3) state registration of ownership of immovable property before the end of one month from the date of preliminary state registration of ownership of such property, except when ownership is acquired by inheritance or state registration of rights as a result of determining the size of shares in joint ownership;

4) state registration of ownership of immovable property:

– due to the transfer of property to the ownership of a legal entity as a contribution (contribution of property to the authorized (composed) capital (authorized fund), entrance, membership and target contributions of members of the cooperative, etc.);

– due to the transfer of property to individuals and legal entities that have withdrawn from the composition of founders (participants) of the legal entity;

– on the basis of a mortgage agreement on a consumer loan, which contains a reservation on the satisfaction of the mortgagee’s claims by acquiring ownership of the mortgage;

– state registration of changes to the information on the legal entity contained in the Unified State Register on the basis of agreements on alienation of corporate rights or acts of acceptance and transfer of shares (parts of shares) in the authorized (composed) capital (authorized fund) of the legal entity concluded (signed) on behalf of the alienator – an individual on the basis of a power of attorney.

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