Zelenskyy has signed a law that will legalize land schemes, including Komarnitsky’s schemes
20 March 18:14
ANALYSIS FROM 
Battles continue over the draft law No. 12089, which was passed in the Verkhovna Rada and is supposed to protect “bona fide purchasers of property.” The bill is supported by entrepreneurs, whom it is primarily intended to protect, such as developers. Instead, ordinary citizens and anti-corruption activists are against it, as they are sure that the last piece of land, the shore of a pond or the basement of a house will be taken away from them. [ Kommersant looked into the details of the scandalous bill.
According to the author of the draft law “On Amendments to the Civil Code of Ukraine on Strengthening the Protection of the Rights of a Good Faith Purchaser”, Igor Fris, “the law is aimed at protecting a good faith purchaser. This includes those who have acquired property legally without knowing the legality of its acquisition by the previous owner. In other words, if a person acquired stolen property but did not know about it, he or she is automatically considered a bona fide purchaser.
Under the new amendments to the law, a bona fide purchaser has the following privileges
- a clear limitation period has been established – after 10 years from the date of state registration of the property right of a bona fide purchaser, the property cannot be claimed through the opening of civil proceedings;
- the moment of the beginning of the limitation period is determined – it is tied to the date of state registration;
- the right of a bona fide purchaser to compensation for the value of property in case of its claim is secured – this is aimed at protecting persons who have lost property through no fault of their own, but due to illegal actions of the previous owners.
“The need for changes lies in the fact that the current version of the Civil Code in terms of regulating vindication (reclamation of property from someone else’s illegal possession) and negatorial (removal of obstacles to the exercise of property rights) claims, as well as the limitation period, has led to ambiguous court practice. In particular, the vindication claim is being replaced by a negative claim, which is inconsistent with the legal nature of state registration of rights to real estate and contrary to the practice of the European Court of Human Rights (three ECHR judgments against Ukraine in favor of a bona fide purchaser),” says MP Fris.
What was given is not to be returned
Fris argues that this draft law does not apply to certain categories of property that are of particular importance to the state and society
- critical infrastructure facilities,
- strategic objects of state property,
- objects of cultural heritage,
- objects of the nature reserve fund.
He is convinced that the adoption of the law will help to increase legal certainty and stability of the civil turnover of real estate in Ukraine.
“Establishing clear rules on the start of the limitation period and limiting the possibility of reclaiming property after a certain period will protect the rights of bona fide purchasers and reduce the number of litigations in this area,” the MP emphasizes, noting that the Supreme Court is currently considering 2000 cases.
Businesses that have often privatized or “legally” seized what a priori could not be transferred to private hands actively support the new law. After all, it simultaneously protects the interests of investors and the state, even if they have crossed the line and, say, by forging documents, seized recreational areas or “squeezed” premises without the permission of apartment building owners.
In other words, these citizens have now turned into bona fide purchasers. And it’s not a given that there will be fewer lawsuits. In addition, Mr. Fries said:
“If someone believes that there is a violation of the law, welcome to the criminal justice system or to court. But forget about replacing everything with vindication.”
In other words, you can’t take it back.
A bona fide purchaser may not be a bona fide purchaser
According to the AntAC, the main risk of the draft law is that it allows legalizing any land illegally withdrawn from the ownership of the state or territorial community if 10 years have passed since such withdrawal. And it does not take into account the following important factors:
- land that could not be legally alienated (e.g., a beach by the sea or a plot of forest) was often illegally alienated;
- “bona fide purchasers” are often part of a corrupt scheme;
- the boundaries of lands of the nature protection fund or cultural heritage are often not clearly defined and not recorded in the State Land Cadastre;
- the wording proposed in the draft law may complicate the return of property and land in the territories of Ukraine temporarily occupied by the Russian Federation.
Civil activist and former MP Ihor Lutsenko explained the essence of the law in a language that Ukrainians understand. If the carve-up has occurred in the last 10 years and the state or community wants to return such plots to their ownership, they must make a deposit – the market value of the land – from budgetary funds to go to court.
“To put it in simple terms: if your apartment was stolen 10 years ago or more, it now definitely belongs to the thief. If your apartment was stolen less than 10 years ago, you have to deposit its market value with the court to sue. If you win the case, the apartment is yours and the thief gets the money. If you lose, you will keep the money and the thief will get your apartment,” said Ihor Lutsenko.
Oleh Popenko, head of the Union of Consumers of Public Utilities, considers this draft law anti-popular. After all, it is about protecting the owners of land and other real estate that was once withdrawn from state or municipal ownership and transferred to private hands.
“The author of the draft law has eliminated the risk of its free return to the state or community for the owners of such property. In fact, this draft law has destroyed all the hopes of co-owners of apartment buildings whose offices, apartments, basements, first floors, roofs and attics were taken away by raiders. They will never get these areas back,” said Popenko.
The petition is the last chance
Activists are now collecting signatures for a petition to the president, which was submitted by Michel Tereshchenko, a former mayor of Hlukhiv, Sumy region, a Frenchman with Ukrainian citizenship. In the petition, the author asks for a veto on Bill 12089, otherwise it will lead to the destruction of forests, coastal strips, historical, cultural, and historical and architectural heritage.
According to the author of the petition, the provisions of the draft law have retroactive effect, so it will be impossible to return the land that is currently being litigated. In particular, it is about the plots associated with the former Minister of Agrarian Policy Solsky, whom NABU accuses of participating in a scheme to seize state land worth more than UAH 290 million, and with Denys Komarnytsky and his accomplices in Kyiv.
Author – Alla Dunina
