For two months now, in Ukrainian society, the cancellation of issuing paper certificates of ownership of real estate, as well as extracts from the State Register of real rights to real estate, has been hotly debated from January 1, 2016. Such rules introduce new norms of the Law “On state registration of property rights to real estate and their encumbrances”.
Both ordinary people and lawyers do not yet fully understand how now the owner can prove his rights without having a document with a seal or on a secure form.
The main reason for the unrest is mistrust to the state, which is now not only the guarantor of the protection and registration of property rights, but also the sole custodian of the title document - entries in the electronic register of real rights.
However, few people say that in practice, even the most secure and correct document in itself does not guarantee the protection of property rights. Hubs figured out how this could happen.
What changed
Under the new rules, the main and only document that confirms the registration of ownership of real estate is an entry in the electronic State register of real estate rights held by the Ministry of Justice of Ukraine.
Prior to the advent of the electronic registry in 2013, the ownership was registered in paper registries that kept communal BTIs and confirmed with a paper certificate of ownership. The ownership of land was registered and confirmed by the land act, which at various times was issued by the State Land Committee or other authorized bodies.
Now the ownership of real estate is registered by state registrars in administrative services centers and notaries. In 2013-2015, a certificate of ownership was issued at the initial registration of the object, and in other cases - a certified extract from the registry on a secure form. Now the maximum that can be obtained is a printout on a regular sheet without printing and signature.
At the same time, state registrars, in parallel with changing data in the electronic register, also keep paper records, which in disputable cases takes precedence over the electronic register. But at the same time all papers are kept by the registrar. The owner does not get anything in his hands.
What are the risks
Practicing lawyers and lawyers are of the opinion that, at least at the initial stage, lawmakers should retain the rule on the mandatory issuance of a paper certified extract from the registry or certificate. So it would be more comfortable and calmer for everyone, including in those cases when it is necessary to look for the guilty.
“There are precedents in the practice of law when the electronic register of real estate rights does not reflect information on transactions that were made with a particular object ,” says lawyer Rostislav Kravets . - For example, I provide in court information from the registry that at the moment the apartment is listed for such and such owner. And the judge, in response, shows me documents from a notary in which it is indicated that this owner has already sold the apartment. What can be done in this case?
According to the expert, the participants in the real estate purchase and sale transaction cannot control the notary to determine whether he has done everything necessary to complete the transaction: whether he entered information about the contract and the transfer of ownership to the relevant registries, etc. Therefore, a paper document with a signature and stamp is required.
As for the parallel paper registration maintained by state registrars, Kravets believes that it certainly matters. But at the same time, the owners will still have difficulties with proving their rights if they do not have any documents in their hands.
At the same time, lawyer of Constructive lawyers Law Firm Alexander Bosenko said that in practice there are cases when the owners do not have any documents that could confirm that they actually received ownership of real estate, such as a contract of sale, donation or something else. Therefore, it would not be superfluous to make an addition in the law that the notary and the registrar are obliged to issue, at the request of the owner, a certified and stamped extract from the registry.
“ For example, when registering apartments in new buildings from the registrars, it is now the practice that they take all the original documents from the owners and sew up the file. As a result, people do not have a single paper confirming their property rights. And then in the case of fraud with the transfer of ownership of an apartment to people who gave huge sums of money for it, there is not even anything to go to court to return their property. They will need to collect documents from the registrar, etc. This creates additional difficulties , ”he said.
Paper, alas, is not omnipotent ...
Lawyers also note that, in fact, even the most correct and most protected document cannot be a true guarantee of protection of property rights. After all, the victim may be not only the legal owner from whom the property was taken away, but also a bona fide purchaser, who was deceived by fraudsters, having sold him, for example, a stolen apartment. In this case, the first owner filed the so-called vendezatsiyu claim to return the property he stole from someone else's property.
At the same time in the Ukrainian judicial practice there are cases when the court canceled up to seven transactions for the sale of an object on the basis that the first was illegal. In such cases, as a rule, it is the last acquirer who is bona fide and does not know anything about previous illegal resale. And when the court, on perfectly legal grounds, takes away the purchased object from it, then the person is left with nothing. After all, scammers who sold him an apartment or a house will never get the money back, even if they manage to find it themselves.
With the advent of the open registry of real estate rights, it has become easier to double-check the history of an apartment or house that a person wants to buy. However, the new open registry still does not contain all the information about the asset history, since the registry has been running for only three years. Most of the information about the owners is still in the archives of the BTI, which are closed for public access.
“Our state has not established mechanisms for guaranteeing property rights, it is not responsible for this. In which case, the owner is sent to court. In other countries, a guarantee fund is being created for this. And if property was registered, and because of the registrar, someone's rights were violated, then the state assumes responsibility, up to and including the payment of funds, ”says Sergey Kubakh , an expert in land management.
“In Ukraine, by virtue of the law, the owner receives guarantees of the integrity of his title from the state (property rights - ed.), But this is just a declaration and the mechanism for implementing such guarantees in practice does not exist yet,” says Timur Bondarev, managing partner of Arzinger Law Firm. - For comparison, in most developed countries, the state is liable to property owners in case of loss of the registered title due to illegal actions / omissions of the registrar. This is being implemented in practice by creating special guarantee funds and introducing the insurance institution for compulsory insurance of professional liability of an official - the registrar. International practice also knows the title insurance institute by insurance companies, which is especially developed in the USA; in our region, this tool is not yet widespread and is primarily used in large transactions when it comes to commercial real estate. ”
In Ukraine, they don’t even talk about something like that. Officials believe that to protect the rights, it is enough to simplify the registration mechanism and provide an opportunity to challenge the actions of the notary and the state registrar in an administrative manner, that is, without going to court. It is this conclusion that can be drawn from the answer to this question by Deputy Minister of Justice Gia Gitsadze. Speaking about the protection of property rights, the official basically talks about competition between registrars and extortion on their part. However, not a word about state guarantees for owners.
However, almost no one talks about this. However, the right of ownership will be protected only when the state will bear actual, and not nominal responsibility for it.
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