In the article under consideration we aim to highlight the personal attitude to the practical ways of protecting real rights to real estate of citizens and business entities. Confident that the classical theoretical and legal knowledge about the contents of the bona fide acquirer, the procedure for filing a negative or vindication claim, judicial recognition of the contract invalid from the list of grounds in the civil code are well-known. The interest of citizens to them is not so great, because they are used by lawyers, real estate lawyers after the fact. We believe that in the existing system of state registration of real rights there are weaknesses, and fraudsters are increasingly using along with the banal forgery of written documents and seals – illegal actions using computer technology and special software.
As it is known since 2013, the State Register of Real Property Rights for Real Estate has started to work – the only state information system that provides processing, preservation and provision of information about registered real rights to real estate and their encumbrances, objects and subjects of such rights. The information contained in the proprietary rights is open, and the information information about the property received through the site in electronic form is equally valid with the paper carriers.
Preventive measures for the prevention of fraudulent actions in relation to real estate can be divided into: the introduction and updating of information in the register, placing of the object on electronic control, conditional restrictions of the object in favor of friendly persons, restriction of the head of the entity on the disposal of property. In case of seizure of your property, it is necessary to use the means of returning the situation to its original state, namely: appeal to the Ministry of Justice, prosecution and civil, administrative and commercial lawsuits. The success and efficiency of returning property will depend directly on quality prevention, as described below.
Consequently, real estate objects, acquired after 2013, are necessarily contained in the register of real rights. Ownership of this time basically passed on the basis of notarized certificates, which were subject to registration in the Bureau of Technical Inventory.
Legally established the duty of the state registrar during the state registration of rights that arose prior to January 1, 2013 to request from authorities, enterprises, institutions and organizations that, according to the legislation, were processing and / or registering rights, information (certificates, certified in the copy of documents established by the legislation), necessary for such registration, in the absence of access to the relevant carriers of information containing the information necessary for the state registration of rights, or in the in the absence of the necessary information in single and state registers, unless the relevant documents have been submitted by the applicant. In other words, the registrar must make a request or receive a written confirmation from the owner of the information from the BTI registry books regarding ownership.
Please note that the Provisional Provisions on the Procedure for Registration of Ownership to Real Estate, in force at that time period, obliged the Information Center Center to make changes to the software by June 2004 and the BTI to enter the information in the electronic register of ownership of immovable property property. In fact, in the city of Kyiv, this register has been in normal use since the beginning of 2008, and in other cities in the period from 2004 to 2007. As of today, the “old” electronic registry of property rights has become part of a new register of property rights, that is, registrars have access to it.
Therefore, we first recommend that all subjects of property rights verify that the existing section in the Register of Rights and Information corresponds to the characteristics of the object (personal data of the subject, area, type and address). To do this, check your own objects from the register on their personal data – kap.minjust.gov.ua, and in case of inaccuracies, contact the registrar or private notary at the location of the property. Please note that the current procedure for conducting state registration is sufficiently regulated and provides for the possibility of making corrections, including, for example, a change in the type of property (type of real estate object type “store” for “stomatology”).
If you have an extract or information note from the register of rights and the information contained therein is correct, the next preventive measure is the connection of the service, which enables the owner to receive instant messages about the logging of any registrar into the registry key. This service actually provides the opportunity to determine the object of real estate for control. The information obtained will enable the owner to appeal to the Ministry in a timely manner, as well as to the police department with a statement about the crime.
The service is provided by “Liga Zakon” company together with the State Enterprise “National Information Systems” and provides two options: receiving a message about changing the status of the object, which costs 30 UAH. for a month and receiving notification about the beginning of the registration action cost UAH 300. month.
It should be recalled that a complaint to a decision, action or inaction of state registrars must be filed with the territorial authority of the Ministry of Justice at the place of performance of such a state registrar within 30 days from the day the decision was taken, or from the moment a person has found out or could find out about its violation right
We consider SMS as an opportunity to establish the fact of illegal actions, and therefore win time. The specified term of appeal will start to coincide only from the moment of the officially received corresponding information reference. Such a time will be required to recover possibly counterfeit written documents from the registrar and other preparatory actions.
Given the experience, we consider the rational application of such control in the following situations: the absence of the owner of property outside Ukraine and the impossibility of systematic control of the object; for large non-residential real estate objects, especially in the case of joint ownership of it; ownership of a legal entity whose members are in a long-term corporate dispute.
In our country cases of fraud with the real estate registry occur more and more. That is why lawyers and public organizations appealed to the minister asking them to improve the registry protection, since they recorded hundreds of unlawful interference with this database.
A commission at the Ministry of Justice of Ukraine on complaints about the state registration of property rights in 2016 met 44% of complaints about the seizure of real estate and business. According to Deputy Minister of Justice Pavlo Moroz, “About 500 complaints were dealt with in essence. About 220 of them are satisfied “.
There were cases when hackers sent letters to private notaries with viruses, after opening which, access keys to the Registry were malicious, and they quickly changed the data on the owners of real estate. There are several cases of theft of keys to registrars, in connection with such reports to the police, a thorough inspection of all circumstances of a possible crime should be carried out.
We draw attention to the fact that the procedure for state registration of real rights to real estate and their encumbrances provides for the possessor of real estate to submit to the registrar a statement prohibiting the commission of any actions with property, and such an application is subject to immediate execution.
If the attacker applied to a registrar who is not a participant in a fraudulent scheme, with documents for registration, including a fake notarial power of attorney, and the register contains the prohibition mentioned above, such registrar must immediately notify the owner of the property by sending the message to the specified in the registry e-mail address.
It follows that if there is no intention to sell real estate in the near future and in order to prevent the use of counterfeit documents, it would be advisable to use the method indicated above, but most importantly indicate the current e-mail address.
In our opinion, one of the most effective preventive methods of protection can be the establishment of a mortgage for long-term monetary obligations in favor of a friendly person. Thus, in the case of illegal alienation of an object, the task of fraudsters is complicated by the introduction of the third figure, and hence the volume required to forge documents. Established by the state, the cost of the notary’s services in this case will be 1% of the loan amount, as well as 0.01% of the amount of the mortgage, but in this part, in agreement with the notary. Of course, the amount of the loan will be hundreds of times less than the cost of mortgaged property. It is not superfluous to foresee the possibility of an out-of-court settlement in the text of the mortgage agreement. Then the parties to the mortgage agreement can decide on the prosecution of a mortgage from the same registrar.
In the situation with business entities – in the form of limited liability companies, the means of protection against authorized approval by the director of the contract of sale of real estate and the act of receipt and transfer can serve as a clear and unequivocal restriction of powers of the managers in the statute and the register of legal entities. We consider it expedient to provide a detailed procedure for the adoption of such particularly important issues as the alienation of immovable property in the company’s charter. Such a procedure may be complicated by the number of votes for a decision, the responsibility of notarization of signatures in the minutes and notarization of contracts (sale of shares in the authorized capital and real estate of the enterprise).
We give a positive assessment of the draft law 9311 on amendments to certain legislative acts of Ukraine regarding the strengthening of guarantees of protection by the state of property rights in the part of mandatory verification of civil legal capacity and capacity of an individual. It is planned that the verification will be carried out by registrars with the receipt of information from the State Register of Acts of Civil Status of Citizens, verification of the validity and content of the power of attorney in the Unified Register of Power of Attorney.
Taking into account the increased cases of false court decisions, the introduction of a mechanism for registering rights based on court decisions will be effective by obligatory obtaining a copy of the decision in electronic form with the qualified signature of the judge. Such a decision will be sent in accordance with the procedure of interaction with the Unified State Registry of court decisions. In the register of judgments, there are sentences in criminal cases against persons who, using fake decisions of judges adjacent to an uncontrolled territory, filed them with state registrars in other locality at the location of property in order to re-assign ownership in favor of members of a criminal organization. We hope that with the adoption of the bill, such a mechanism of cynical selection of property will be legally impossible.
In the event, however, the occurrence of unlawful changes in the registry by means of a consensus with or without a registrar – the priority action plan shall require all written materials on the basis of which the action was taken (registration case) and, through the court, seize the object in order to prevent further resale. Attorneys at our company’s real estate in Kyiv are ready to promptly take up the protection of your property.