Expropriation of undeveloped land of communal property, which is leased. Some aspects
Authors: Kolotukha I. 
Published: April 2022

The issue related to the peculiarities of the legal regime of the leased property is considered. We are talking about the possibility of selling communal land plots outside of land auctions, which by law must be carried out by local governments in the case of alienation of land plots free of development to individuals or legal entities.

This article analyzes the provisions of national legislation such as the Civil Code of Ukraine, the Law of Ukraine "On Land Lease", provides examples of case law of the Supreme Court of Ukraine and the decisions of the Constitutional Court, which regulates this issue.

In disclosing the provisions of the article, the author pays considerable attention to the term the preemptive right of the tenant, what it is and how it relates to the concept of redemption of land from public auction (land auction).

The author analyzes in detail the provisions of the Law of Ukraine "On Land Lease", in particular, much attention is paid to the disclosure of the content of articles that directly allow the exercise of the preemptive right to purchase land leased. Thus, a tenant who, in accordance with the law, may own a leased land plot, has a preemptive right to acquire it in the case of sale of this land plot, provided that he pays the price at which it is sold, and in the case of sale at auction - if his bid is equal to the bid that is the largest of the bids offered by the auction participants.

No less important in this context are the provisions of the Civil Code of Ukraine, which are characterized in this article and reveal the identical meaning of the concepts, which is reflected in the special law on land lease and in Art. 777 of the CCU, on the preemptive right of the lessee to repurchase the thing that he rented. Distinctive are the provisions of civil law, which are also analyzed by the author in this paper, on the identification of things in civil circulation, and which of them may be the subject of land auctions, taking into account Art. 777 CCU. Yes, it is stated that a thing is an object of the material world, in respect of which civil rights and obligations may arise. Immovable property (real estate, real estate) includes land plots and objects located on it, the movement of which is impossible without their depreciation.

No less necessary in law enforcement is the practice of national courts, which essentially confirms the provisions of Art. 9 of the Law on Land Lease and indicates the possible consequences of overcoming the legal conflict in the application of the Land Code of Ukraine, which prohibits the sale of undeveloped land of communal property outside the land auctions. No less significant is the case law of the European Court of Human Rights, which is cited in this article. According to its content, in order to maintain social justice in society as a component of the public interest, the national legislator may allow the protection of the interests of property tenants by imposing restrictions on the right of its owners to determine the terms of sale of leased property.

An important circumstance is the avoidance of litigation to challenge the procedure and the outcome of land auctions. In essence, land auctions are a transaction. Thus, given that the alienation of property from public auction refers to purchase and sale agreements, such an agreement may be declared invalid on the basis of civil law on the invalidity of the transaction (Articles 203, 215 of the Civil Code of Ukraine). And invalidating the results of the land auction will not give the tenant effective protection of his preemptive right to repurchase the leased land, but will only continue his efforts to do so. As the author of this article rightly points out.