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Publication date: 22.05.2024
lawyer, 23 years of experience in enforcement.
Lease of state or communal property.
In Ukraine, relations related to the lease of state and communal property are regulated by the Law of Ukraine "On Leasing of State and Communal Property" No. 157-IX.
Article 3 of the Law establishes a list of property that can be leased.
Part 4 of Art. 4 of the Law establishes a list of persons who cannot act as tenants of state or communal property.
According to Art. 5 of the Law, the phasing of property lease includes:
- making a decision regarding the intention to transfer the property for rent;
- entering information about a potential rental object into the electronic trading system (ETS);
- making a decision to include a potential rental object in one of the Lists;
- publication of information about a potential rental object, regarding which a decision has been made to include in one of the Lists, in ETS;
- placing an announcement on the transfer of property for rent in ETS;
- conducting an auction for the right to lease property or transferring an object for lease without holding an auction, concluding and publishing a lease agreement in ETS.
According to Art. 6 of Law No. 157-IX, the initiators of property lease can be a potential tenant, a balance sheet holder, an authorized management body and/or a lessor.
Thus, if a potential tenant is interested in receiving property for rent, he must apply to the lessor with a statement to include this property in the List of the appropriate type in accordance with the Procedure for Leasing State and Communal Property, approved by Resolution of the CMU of June 3, 2020 No. 483 .
According to Clause 14 of the Procedure, the potential tenant applies with the relevant application through the electronic trading system. The procedure for registering a potential tenant in the electronic trading system is determined in accordance with the rules of operation of the electronic platform through which such a tenant submits an application.
An application for the inclusion of property in the List of the appropriate type is submitted by filling out an electronic form through a personal account in the electronic trading system and uploading electronic copies of the documents provided for in clause 15 of the Procedure.
If the potential tenant does not have information about the lessor of the property, he applies with an application in accordance with Clause 16 of the Procedure.
Part 2 of Art. 4 of Law No. 157-IX, it is determined that lessors in relation to other separate, individually determined property are balance holders (paragraph d). Thus, the procedure is somewhat easier, since it is not necessary to obtain the permission of the lessor and the balance keeper to include the object in the corresponding List.
According to Part 2 of Art. 5 of Law No. 157-IX, the lessor must consider the application and make a decision on its merits within 10 days from the date of receipt.
If, in accordance with the legislation, charter or regulations of the balance holder, the authorized management body to which the balance holder belongs must give consent to dispose of the balance holder's property, this period is extended to 40 days.
The decision to refuse to include an object in the relevant List is made in the event of one of the grounds provided for in Article 7 of Law No. 157-IX.
In accordance with Part 4 of Art. 6 of Law No. 157-IX, after the balance holder makes a decision about the intention to lease the property or receives from the authorized management body a decision on the expediency of the property for lease, the balance holder enters information about the potential lease object into the ETS in the manner, scope and terms provided for in 24 of Order No. 483, and includes the object in one of the Lists.
Clause 26 of the Procedure defines the information that should contain information about a potential rental object.
The balance keeper notifies the applicant about the decision made within 3 working days from the date of its adoption.
Part of the 7th Art. 6 of Law No. 157-IX provides a list of entities that have the right to change or cancel the decision to include (as well as refuse to include) an object in one of the Lists.
The lists are published in ETS and on the official websites of landlords. In accordance with Clause 51 of Order No. 483, the lessor through his personal office publishes in the electronic trading system an announcement about the transfer of property for lease at an auction in the cases and within the terms provided for in Part 1 of Art. 12 of Law No. 157-IX.
Within these terms, he develops the terms of the lease of the property (if any), which include the amount of the starting rent of the leased object for auctions and the term of the lease, determined in accordance with Clause 53 of the Procedure.
The draft of the lease agreement, which is placed in the announcement of the transfer of the property for lease at the auction, must contain all the information provided for in the model lease agreement, except for information about the identity of the tenant and the rent.
The announcement itself must comply with clause 55 of the Procedure.
As a general rule, an auction is required for objects that have been included in the List of the first type.
The transfer of property without an auction takes place in accordance with the procedure specified in Art. 15 of Law No. 157-IX.
The procedure for conducting the auction is established by Art. 13 of the Law, as well as relevant sections of Order No. 483.
Clause 73 of Order No. 483 specifies that the winner of the electronic auction is determined by automatic evaluation of the ETS price offers of the participants after the completion of the last round of the electronic auction and the formation of a protocol on the results of the electronic auction, except in cases of use of the preemptive right by the current tenant during the auction for the extension of the lease agreement in accordance with clause 149 Order.
In the event that an application for participation in the auction is submitted from one participant, such participant is considered to have submitted the highest price offer for the lot, and the lease agreement is concluded with such participant at the rent offered by him, provided that such rent equal to or greater than the starting rent.
According to Clause 74 of Order No. 483, the winner of the electronic auction signs the protocol on the results of the electronic auction and provides it to the operator of the electronic platform through which he submitted the price offer, within 3 working days from the day following the day of its formation by the electronic trading system.
After that, he concludes the lease agreement of the leased object and signs the act of acceptance and transfer within 20 working days from the day following the day of formation of the protocol on the results of the electronic auction.
The section "Determining the winner of the electronic auction and the electronic auction with a reduction in the starting price" of the procedure also regulates other issues that arise during the determination of the winner of the auction.
Article 16 of Law No. 157-IX and the corresponding provisions of Order No. 483 determine the procedure for concluding a lease agreement and making changes to it.
Legal service "Consultant" will provide professional legal services for business, services of a business lawyer. Lawyers and lawyers will provide qualified legal support for business, as well as provide assistance in the preparation of a contract preparation of a contract for the lease of state or communal property, support in conducting an auction, counterparty verification, etc.
