Terms of the contract as essential condition of the land lease.

Abstract

The article analyzes the approaches to the definition of the terms of the land lease as an essential condition of the contract. Problematic issues of determining the beginning of this period are raised based on the practice of the Supreme Court of Ukraine. The necessity of improvement of the legislation and judicial practice for the protection of the right of the lessor for the return of the land plot in the term stipulated by the parties when drawing up the land lease is substantiated.

In particular, the position of the Supreme Court of Ukraine, set forth in the rulings of June 13, 2016, case No. 6-643цс16, dated January 18, 2017, case No. 6- 2777цс16, dated December 18, 2013, case No. 6-127цс13, dated February 19, 2014 case No. 6-162цс13 and some others, is analyzed. According to this position the beginning of the term of the land lease is connected with the state registration of the lease right, which is often carried out after the expiration of a long time after the conclusion (signing by the parties) of the land lease and the beginning of the actual fulfillment of the terms of the contract.

The article concludes that such use of a land plot before the state registration of the lease right leads to the actual extension of the term of the land lease, and therefore violates the right of the lessor to return the land plot within the term that was set by the parties during the conclusion (signing) of the contract.

In order to prevent such a violation, amendments are proposed to improve the legislative regulation of the term of the land lease, in particular by: obligatory setting in the contract of the deadline when the land plot should be returned to the owner; establishment of tenant's liability for late realization of registration of the lease right.

The need to change judicial practice on this issue, considering the principles of fairness and conscientiousness established by Article 3 of the Civil Code of Ukraineis also substantiated.