During the war, the legislation regulating land relations in Ukraine has been changing dynamically. This topic is especially important for local communities. What to do if the land lease agreement has expired? Is it necessary to register land lease rights in the State Register? 

The team of Transparent Cities (Transparency International Ukraine) received many questions from the participants of the workshop we held in cooperation with the All-Ukrainian Association of Self-Government Bodies “Association of Amalgamated Territorial Communities”: “How to ensure transparent land use during the war?” So, our experts have prepared answers to the most common questions from the participants. 

What is the procedure for renegotiating lease agreements for agricultural land that have expired?

According to Law No. 2145-IX, which came into force on 07.04.2022, agricultural land lease agreements that expired after the introduction of martial law before 19.11.2022 are considered renewed for one year. Such renewal took place without the will of the parties, the conclusion of agreements, or the entry of information into the State Register of Real Rights to Real Estate (subparagraph 1 of paragraph 27 of Section X “Transitional Provisions” of the Land Code of Ukraine). 

The entry into force of Law No. 2698-IX on November 19, 2022, restored the pre-war system of land lease registration. Agreements that have already been renewed after the introduction of martial law continue to be valid for one year from the date of their expiration. However, to renew agreements that expired on or after November 19, 2022, the general procedure for renewing lease relations should be followed. In particular, the tenant’s preemptive right to enter into a new lease agreement, as provided for in Article 33 of the Law of Ukraine “On Land Lease,” should be considered. 

Attention! The registration of any lease, sublease, emphyteusis, or transfer of land use rights to land plots by military administrations with all the peculiarities of such agreements becomes terminated from the moment the State Land Cadastre resumes its functioning.

Would it be possible to lease a land plot to citizens (not individual entrepreneurs) for commercial agriculture? 

The Laws of Ukraine No. 2247-IX, No. 2145-IX, and No. 2698-IX, which regulate the specifics of land relations during martial law, do not define the range of land lessees for such a purpose, so, the current legislation should be followed. As commercial agriculture involves making a profit, the lessee must be an individual entrepreneur with the appropriate economic activity code or a legal entity. 

Would it be possible to permit changing the purpose of a privately owned land plot during martial law?

Changing the purpose of a land plot of private property during martial law is allowed since Laws No. 2145-IX of 24.03.2022, No. 2247-IX of 12.05.2022, and No. 2698-IX of 19.10.2022 do not provide for any prohibitions on such changes. At the same time, the issue of granting permission to change the purpose of the land plot is not relevant, considering the current legal regulation of the purpose of the land plot: to develop a land management draft to change the purpose of the land plot, a private owner of the land plot does not need a decision (permit) from self-government bodies (part 6 of article 20 of the Land Code of Ukraine). Local councils/state administrations approve the already developed draft of the change of the purpose of the land plot within one month from the date of its receipt (see Clarification of the Ministry of Justice.) 

Would it be possible to change the purpose of the land plot “other agricultural purpose” (under real estate) to another category, for example, transport?

Yes, through the development of a land management draft based on the developed urban planning documentation at the local level, followed by the approval of the draft by a decision of the council meeting. A mandatory prerequisite for such a change is the functioning of the State Land Cadastre. If its functioning will be suspended, the restrictions provided for in subclause“b” of subclause 11 of clause 27 of Section X “Transitional Provisions” of the Land Code of Ukraine will apply. 

Is it necessary to register the right to lease a land plot in the State Register for municipal property lease agreements concluded for 1 year?

According to the requirements of Law No. 2698-IX of 19.10.2022, the registration of land lease rights in the State Register of Real Estate Rights has been resumed. The right to lease land is subject to state registration. If the land plot is leased during the period when the State Land Cadastre is not functioning, the lessee will be obliged to apply for state registration of the lease right within 2 months from the date of resumption of the State Land Cadastre. If the lease agreement is not registered within 3 months, it will be considered terminated. 

Is it possible for a third party to prepare technical documentation at their own expense?

According to Law No. 2145-IX of 24.03.2022, the formation of a land plot for leasing is carried out based on technical land management documentation on land inventory, which is developed by a decision of the body authorized to lease land plots. The Law does not set requirements for the source of funding for such development.  Article 67 of the Law of Ukraine “On Land Management” provides for the possibility of financing land management works at the expense of legal entities, citizens, and other sources not prohibited by law. This article also contains a list of works financed from the state budget. 

At the same time, local councils and executive authorities act as land lessors for municipal/state-owned land plots. Considering this, it is recommended to avoid cases when a third party pays for services provided to these councils/authorities as customers under land management agreements. Article 54 of the Law of Ukraine “On Prevention of Corruption” prohibits the receipt of money or other assets, intangible assets, property advantages, benefits or services, free of charge from individuals or legal entities, except as expressly provided by applicable law. 

Would it be possible to develop documentation providing for the free transfer of land plots to private ownership during martial law?

Subclause 5 of clause 27 of Section X “Transitional Provisions” of the Land Code of Ukraine as amended by Law No. 2145-IX of 24.03.2022 stipulates that the free transfer of state and municipal land to private ownership, the granting of permits for the development of land management documentation for free-of-charge transfer, as well as the development of such documentation, are prohibited.

How to ensure transparency of land use during martial law?

Comply with the requirements of CMU Resolution No. 835 on datasets to be published in the form of open data. Self-government bodies should move from the practice of total closure to limiting specific critical information. For example, when deciding to publish information on land leases, it is crucial to avoid disseminating information on the relocation, movement, or location of the Armed Forces of Ukraine or other military formations (Article 114-2 of the Criminal Code of Ukraine).  

Instead, the publication of such a set of data as planned and actual payment rates under municipal property lease agreements will promote public awareness of local budget revenues and satisfy their right to access public information. 

To determine whether access to information can be restricted, a three-part test has been developed under part 2 of article 6 of the Law of Ukraine “On Public Information” that should be applied to the publication of open data, including in the field of land use:

• determine the type of information — whether it is confidential, service, or secret; 
• determine whether the requested information is related to the interests of national security, territorial integrity, or public order, whether there is a possibility of unrest or crimes if access to the requested information is granted, or whether it is a restriction in the interests of public health;
• whether the disclosure of the requested information will cause substantial damage to the above interests, and if so, whether the damage from the disclosure of such information outweighs the public interest in obtaining it. 

Access to public information may be restricted only if all three questions are answered positively (clause 6.1 of the Resolution of the HACU Plenum of 29.09.2016 No. 10).

Experts of the Transparent Cities program emphasize that transparency and accountability are the principles that guarantee the effective work of the authorities, especially in times of crisis. It is the transparency in the land use sector that allows for strategic planning of the preservation of natural and socially valuable resources, better use of existing tools for regulating tax revenues and controlling community development, and facilitates access to non-profit construction.