The moment of entry into force of the land lease agreement: 5 aspects that should be considered in land disputes
The current case law in land disputes indicates that one of the key problems today remains determining the moment when the land lease agreement enters into force. Due to the ambiguity of the approach, this issue has repeatedly become the subject of examination by the Grand Chamber of the Supreme Court.
The key aspects related to determining when the land lease agreement enters into force were uttered in the expert opinion of the Committee of the Ukrainian National Bar Association on Agricultural and Land Law, prepared by Sofiya Law Firm partner and attorney Mr Oleksandr Polivodskyy:
1. The term “moment of execution of an agreement” is not identical to the term “moment of registration of rights”.
2. The terms “registration of rights” and “registration of an agreement” have different content.
3. A land lease agreement upon conclusion in simple written form is consensual, unless otherwise agreed by the parties.
4. The absence of a cadastral number in the text of the agreement may not always indicate the absence of the essential condition of the agreement.
5. The principle of legitimate expectations is to be widely applied in practice under land lease agreements and in other land legal relations.
The author came to the conclusion that the solution of the problem of determining the moment of concluding a land lease agreement is possible with a systematic approach: taking into account the norms of law, the practice of the ECHR, ideas and concepts, including the rule of law, in their interconnection with a view to the fair resolution of disputes and conflicts.
In order to avoid ambiguous interpretation and to eliminate abuses at the legislative level, it should be clarified that the land lease agreement is considered concluded from the moment when the parties reach an agreement in the established form on all the essential conditions, unless the parties have agreed otherwise.
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