The rights and the duties connected with purchase by foreign physical and legal entities of land and property in Ukraine.
PHYSICAL PERSONS NON-RESIDENTS
The rights of foreigners for possession of real estate property are described in art.26 of Constitutions of Ukraine and art.2, the third Book. “The property right and other real rights of the Civil Code of Ukraine”.
The current legislation of Ukraine part 2 art.81 of the Land Code of Ukraine for foreign citizens establishes restrictions on purchase of the land plots. Foreign citizens, in particular, can purchase land plots only not agricultural purpose within the borders of settlement. Also foreign citizens can purchase in the private property the land plots of not agricultural purpose outside settlements if there objects of real estate are situated which are the property of the foreign citizen. Foreign citizens have no right to free-of-charge privatization of the land plot.
The basis for occurrence at foreign citizens of the property right to the land is: purchase under the contract of sale and purchase, donation, exchange; the purchase of the land plot on which objects of real estate which belong to foreign citizens on the right of a private property are located; acceptance of the inheritance. However, if the foreign citizen will receive the land plot of agricultural purpose in the inheritance, he is obliged to sell, exchange or present in the term of a year such a land plot to the person who in conformity with requirements of the current legislation can have in the property the land of such category. The term during which such a land plot should be seized is estimated from the moment of acceptance of the inheritance.
By the current legislation of Ukraine it is certain, that foreign citizens have the right to rent land plot which they cannot get in private property, according to requirements of the current legislation.
Purchase by foreign physical persons of the land plots is carried out by signing the contract of sale and purchase which is a subject to the obligatory notarial certificate and the state registration according to art. 657 of the Civil Code of Ukraine. As the Ground Code of Ukraine declare that the property right to the land arises from the moment of reception and the state registration of the State certificate on the property right to the land plot according to the art.126 of the Land Code of Ukraine after the conclusion of the transaction of sale and purchase the buyer should address with the application in the state department of land resources for drawing up, reception and registration of the State certificate of the land.
As the procedure of sale and purchase of the land requires the notarial certificate, the parties of the contract should give the certain documents for the settlement of transaction. The necessary list of documents is specified in the Instruction of the order of fulfillment of notarial actions by notaries of Ukraine approved by the order of the Ministry of Justice of Ukraine March, 03rd 2004 № 20/5 and registered in the Ministry of Justice of Ukraine on March, 03 March 2004 283/8882.
From the citizen-non-resident of Ukraine it is required:
- The passport (for Russian citizens) or the passport with the valid visa (for foreigners, those countries has established a visa mode with Ukraine) or residence permit in Ukraine;
The-information on assignment of identification number according to the State register of physical tax bearers (it is possible to receive having filled a card of the form 1DR in tax inspection and having shown the passport);
-presence of the spouse (spouses) or granting its notarially certified consent to the settlement of the planned transaction.
In accordance with art.7 of the Law of Ukraine «About the taxation of incomes of physical persons» where as the tax agent the notary will act, from the resident of Ukraine which is the seller of the land plot the surtax at a rate of 5 % from cost of the land plot and 1 % of a State Tax is taken. Non-resident of Ukraine in case of being the seller of the land plot should pay 5 % + 30 % of surtax and 1 % of a State Tax.
LEGAL ENTITIES NON-RESIDENTS.
The Ukrainian legislation permits the purchase by non-residents of the real estate and land (except the land for agricultural use), and also permits the operation of the real estate, including lease, and also alienation of the real estate. Ukrainian legislation does not present absolutely any qualifying requirements or conditions to the buyer (investor).
Article №82 of the Land Code of Ukraine regulates powers of purchase of the land plot by the foreign legal entity. Foreign legal entity can get the property right to the land plot of not agricultural purpose:
a) in borders of settlements in case of purchase of objects of real estate and for a construction of the objects connected with business activity in Ukraine.
b) behind borders of settlements in case of purchase of objects of real estate.
The joint ventures founded with participation of foreign legal and physical entities can get the property right to the land plots of not agricultural purpose in cases noticed by part one and part two of this Article.
It is necessary to remember that operations with the real estate should be carried out through representation of the non-resident in Ukraine or in some cases through special investment accounts. In order to define the size of taxes it is necessary to keep account, show expenses, charges and incomes, to charge amortization, etc. In some cases there is a reason to execute the specified requirements by using of the enterprise-resident of Ukraine by the separate contract.
For the conclusion of the contract of sale and purchase of the land plot or the real estate the following documents are required to the head (representative) of the foreign legal entity:
- Constituent documents (if they are stipulated by the legislation of the country of registration), the certificate on the state registration or an extract from the trading, bank or judicial register. The notary checks whether notarial action meets the volume of legal capacity of the legal entity.
- The order (report) on purpose (election) of the head of the legal entity-non-resident or the power of attorney, given to the representative of the legal entity. The notary does not demand the power of attorney on the conclusion of the contract from the person, authorized by constituent documents of the legal entity. In these cases from the representative the documents which provide the specified powers and certify its official position are required.
- availability of a seal of the foreign legal entity.
The documents which are registered abroad, at participation of foreign authorities or proceeding from them, are accepted by notaries of Ukraine under condition of their authentication according to the legislation of the country of their delivery, translation into the Ukrainian language and legalizations by bodies of the Ministry of Foreign Affairs of Ukraine. Without legalization such documents are accepted by notaries in cases, when on conditions of the bilateral agreements concluded by Ukraine and a country of origin of documents, their additional authentication is not required, or when they are certified by the authorized body of a country of origin of the documents by apostille according to Hague convention cancelling the requirement of legalization of foreign official documents which was entered into force in Ukraine at December, 22nd, 2003.