The right to use agricultural land under martial law

On 07 April 2022, the Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine on Creating Conditions for Ensuring Food Security under Martial Law’ (the ‘Law’) came into force.

What is the purpose of the Law?

The purpose of the Law is to create new mechanisms for the use of agricultural land of private, communal and state ownership in wartime in Ukraine.

It is a well-known fact that with the outbreak of hostilities in Ukraine, most state registers, including the State Register of Property Rights and the State Land Cadastre, were temporarily suspended for security reasons. In addition, during the period of martial law, it is impossible to carry out the usual procedures provided for by the legislation of Ukraine for the formation of land plots, transfer of state-owned land plots for use by private individuals, land auctions, etc.

This situation obviously required a legal solution, as the duration of hostilities and the impossibility of proper legal registration of land relations at that time created legal uncertainty for a large number of land users, which, in turn, in many cases created legal obstacles to the sowing campaign.

What changes have been made to the legislation?

The Land Code of Ukraine has been supplemented with special legal provisions that temporarily define the specifics of regulating legal relations with respect to agricultural land for the period of martial law. At the same time, the legal regulation is based on the priority of public (state) interests over the interests of private individuals under martial law, i.e. in some cases, the legal fate of land plots is decided without regard to the will or interests of agricultural land owners. This fact follows from the content of the law and is explicitly recognised in the official explanations of the application of the law.

What restrictions are imposed on private land owners?

First, the Law provides for the automatic (without the will of the parties) renewal for one year of lease, sublease, emphyteusis, superficies, and land servitude agreements for agricultural land plots whose use expired after the introduction of martial law, without entering information into the State Register of Real Property Rights. This rule applies to both private and state or municipal land. Thus, private owners are effectively temporarily deprived of the right to change the tenant, make significant changes to the terms of the lease agreement, etc.

Secondly, lessees and sublessees of agricultural land plots of all forms of ownership may transfer their lease or sublease rights to another person for a period of up to one year to use the land plot for its intended purpose. Such transfer is carried out without the consent of the land plot owner on the basis of a written agreement on the transfer of the land use right between the land user and the person to whom the right to use the land plot is transferred. The restrictive effect of this provision on the rights of a private owner is obvious: during martial law, the owner loses influence over the further transfer of his land for sub-use.

Is state registration of use rights possible?

The Law actually temporarily cancels (or suspends) state registration of the right to use agricultural land that arises or will arise during martial law. For the duration of the war, the emergence of the right to use will not be associated with the state registration of the right to use in the state register of property rights, but with a special procedure for registering the relevant land use agreement.

The state registration of a land lease agreement is carried out by the district military administration in the Book of Registration of Land Ownership and Land Use under Martial Law.

Currently, the Book of Registration of Land Ownership and Land Use is maintained by the district military administration in paper and electronic forms. The form of the land ownership and land use registration book is to be determined by the Ministry of Agrarian Policy and Food of Ukraine.

How to obtain state or communal agricultural land for use?

Another aspect regulated by the Law is the procedure and conditions for the transfer of state-owned and municipally owned agricultural land for use during martial law.

The Law establishes requirements for the form and content of the relevant agreements, and effectively cancels the requirement for a competitive procedure for the provision of such land for use during martial law. The transfer of land for use during martial law will not require registration in the State Register of Property Rights and the State Land Cadastre. The procedure for the formation of the relevant land plots has been simplified as much as possible.

At the same time, the Law provides for a number of safeguards against possible abuse of the simplified mechanisms for obtaining land for use. Thus, the Law provides for a 1-year limit on the use of such land, and prohibits the change of the designated purpose of such land plots. It is also prohibited to build any facilities on them, transfer them into ownership, etc. In addition, the Law clearly provides that land plots transferred for use under this simplified procedure are not assigned a cadastral number and cease to be a separate object immediately upon expiry of the term for which they were transferred for use or termination of the relevant agreement.