On 01.01.2013 LU On State land cadastre entered into force, and the rules of LU On state in rem rights to immovable property and their encumbrances registration became operational. This caused significant changes in the foundations of State land cadastre and in rem rights to land registration:
1) registering in rem titles to land parcels and their encumbrances which was earlier performed in the State land register (an element of State land cadastre) and was identified as “state land parcel registration”, now is not a part of the State land cadastre and is performed according LU On state in rem rights to immovable property and their encumbrances registration; state land parcel registration has changed its meaning and is performed once in relation of each land parcel – when this parcel is formed;
2) the requirement to register land alienation transactions is abolished.
Such amendments should be supported.
The amendments suppose, inter alia, that while registering a land parcel the state cadastre registrar should apply for registering in rem rights to it on behalf of the subject of these rights (§ 4 art. 30 LU On State land cadastre).
NB. Registration of titles is necessary for announcing the rights to the public, when existence of these rights is not obvious from the actual state of affairs. When the rights to movable property are announced through the very fact of physical possession, in case of immovable property there can be no actual “physical possession” at all or it can be not obvious to 3rd parties. That is why in most countries of the world in rem rights to immovable property are subject to registration.
Legislative definition of the State land cadastre is given in § 1 art. 193 LCU, art. 1 LU On State land cadastre: “State land cadastre – integral geo-informational system including data related to lands within the borders of Ukraine, their purpose of use, limitations in land use, as well as data on quantitative and qualitative characteristics of land, their evaluation, distribution among owners and tenants.” This definition (not necessary in the law, of course) more or less correctly describes understanding of the land cadastre in Ukrainian law.
NB. The word “cadastre” originates from Latin words “caput” (“item subject to taxation”), “capitastrum” (“description of items subject to taxation”). Later these two words were combined in French word “cadastre”1.
On 01.01.2013 the part of information included into the State land cadastre became open to public – it is available through the Public cadastral map of Ukraine, which is published in the Internet. The State Agency for Land Resources responsible for maintaining the State land cadastre plans to extend the scope of data available through the Public cadastral map of Ukraine.
The State land cadastre is a basis for maintaining the cadastres of other natural resources, as well as for urban cadastre of settlements.
General rules on the State land cadastre maintenance are established in:
- LU On State land cadastre;
- art. 23 LU On environment protection (establishes general framework for natural resources cadastres);
- arts. 193-204 LCU (subch. 34 “State land cadastre”);
- the Regulation of CoM On approval of the Procedure for performing land cadastre works and provision of paid services by state land resources authorities of 01.11.2000 №1619;
- the Regulation of CoM On information exchange between the authority responsible for the State land cadastre, and the authority responsible for state titles registration of 22.02.2012 №118;
- the Regulation of CoM On approval of the Procedures related to the State land cadastre of 17.10.2012 №1051;
- the Order of the State Committee for Land Resources of Ukraine, the Ministry of Finances of Ukraine and the Ministry of Economy of Ukraine On approval of the prices for land cadastre works and services of 15.06.2001 №97/298/124.
Legislative acts governing separate elements of the State land cadastre are considered below.
The list of documents comprising the State land cadastre are defined by § 1 art. 18 LU On state land cadastre:
“1. The documents of the State land cadastre created in the process of its maintenance:
cadastral maps (schemes) of the Autonomous Republic of Crimea, oblasts, rayons, cities, settlements, villages, other thematic maps, the list of which is set by the Procedures related to the State land cadastre;
Excerpts from the State land cadastre database
(see www.amm.org.ua for a full-size copy)
NB. According to experts one of the major flaws of the State land cadastre is its reliance on statistical data (starting with Soviet era instead of proper actualization of cadastre data statistical reporting was used, the measurements were not sufficiently accurate2.
Elements of the State land cadastre
Elements of the State land cadastre are defined by art. 197-203 LCU:
“а) cadastral zoning;
б) cadastral survey;
в) soils quality assessment;
г) economic lands evaluation
ґ) monetary lands evaluation;
д) state land parcels registration;
е) accounting land quantitative and qualitative characteristics.”
(а) Cadastral zoning
According to art. 197 LCU cadastral zoning supposes establishing:
“а) the location of limitations of land use;
б) the boundaries of cadastral quarters;
в) the boundaries of districts and zones used for land evaluation;
г) cadastral numbers (of the territory of an administrative unit).”
As opposed to zoning as an element of land use planning (art. 180 LCU), cadastral zoning does not establish any rules on land use and is only a technical tool to account lands. Cadastral zones and quarters are mapped on so called “index cadastral maps”, which are created according to the Regulation of CoM On approval of the Procedures for the State land cadastre of 17.10.2012 №1051. Cadastral zoning of Ukraine is available on the Public cadastral map of Ukraine.
(б) Cadastral survey
§ 1 art. 198 LCU defines cadastral survey as works aimed at determining and restoring land parcels boundaries, which include (§ 2):
“а) geodesic determination of land parcel boundaries;
б) approval of land parcel boundaries by owners and tenants of adjacent land parcels;
в) restoring land parcel boundaries in kind;
г) establishing boundaries of parts of land parcels subject to limitation of land use and encumbrances;
ґ) developing cadastral plan.”
Cadastral survey is governed by:
- LU On topographic, geodesic and cartographic works of 23.12.1998;
- the Regulation of CoM On the procedure for using the equipment of satellite radio navigation systems in conducting topographic and geodesic, cartographic, aerial, projecting, research works and cadastral survey of 13.07.1998 №1075;
- the Rules on cadastral inventorization of settlements lands approved by the Order of the State Committee on Land Resources of Ukraine №85 of 26.08.1997;
- ДСТУ 2393-94 Geodesy. Terms and definitions3;
- ГКНТА-1.04-01-93 Creating topographic schemes of scales 1:5000, 1:2000, 1:1000 and 1:500. Basic provisions, approved by the Order of the Department for Geodesy, Cartography and Cadastre under CoM of 24.01.1994 №3;
- ГКНТА-2.04-02-98 Instructions on topographic survey in scales 1:5000, 1:2000, 1:1000 and 1:500, approved by the Order of the Department for Geodesy, Cartography and Cadastre under CoM of 09.04.1998 №56;
- ДБН А.2.1-1-2008 Research, design development and spatial arrangements. Research. Engineering research in building sphere.
NB. For description of problematic issues related to approval of land parcel boundaries by the owners and tenants of adjacent land parcels see subch. 1.3 ch. “Transfer of Land Ownership”.
(в) Soils quality assessment
According to art. 199 LCU, art. 1 LU On land evaluation, soils quality assessment is “a comparative soils quality evaluation by their major natural characteristics which are of stable nature and essentially influence crop yields grown in particular natural and climate conditions”.
§ 2 art. 199 LCU establishes that “assessing soils quality is performed by 100-point scale. The highest points are awarded to soils with better characteristics having better natural productivity”.
NB. The first comprehensive agricultural soils quality assessment was performed in Ukraine in 19934 As a result of the first round of large-scale soil studies 5 thousand types of soils were identified. The types of soils were divided into 222 agricultural soils groups, which were used as the foundation for soils quality assessment5. Data received were used as a basis for agricultural lands monetary evaluation6.
According to art. 16 LU On land evaluation soils quality assessment is perform not only in relation of agricultural lands (at least once in 7 years), but also in relation of forestry lands. Evaluation is performed by business entities which have a license for land survey works. Thus the law governs soil quality assessment as an element of land survey, and not an element of the State land cadastre; besides, it is very disputable if soil quality assessment can be viewed as management – this seem to be purely research activity. For these reasons legal regulation of these relations seems excessive.
(г) Economic lands evaluation
Economic lands evaluation is governed by art. 200 LCU and several provisions (art. 17 and others) of LU On land evaluation. According to art. 200 LCU,
“1. Economic lands evaluation – an assessment of lands as a natural resource and as means of production in agriculture and forestry, as a spatial basis in social production by characteristics of lands productivity, the effectiveness of their use and income generated by a unit of area.
2. Economic evaluation of lands of different purpose of use is performed for comparative study of their use effectiveness. Data obtained are used as a basis for monetary evaluation of land parcels of different purposes of land use.
3. Economic evaluation of lands is performed in relative cadastral hectares or in monetary value.”
Economic evaluation of lands is done by their productivity, costs return, differentiated income, location, environmental significance, engineering infrastructure etc. Pursuant to art. 17 LU On land evaluation economic evaluation is performed for agricultural lands once in 5-7 years by business entities licensed to perform land survey works. Thus in fact the law governs soil quality assessment as an element of land survey, and not an element of the State land cadastre.
NB. Economic lands evaluation was performed in Ukraine as long ago as in 1988 and now is almost completely outdated7. For instance, economical evaluation of lands of Kyiv was approved by the decision of Kyiv city council of 04.04.1988, it established 6 zones. Now there are 190 such zones in the city8.
In my opinion economic lands evaluation has no practical meaning if taken separately from monetary evaluation. In my opinion, economic lands evaluation will be sooner or later consumed by monetary lands evaluation.
(ґ) Monetary lands evaluation
Monetary lands evaluation – determination of the monetary land parcel value equivalent based on possible income; there are tax and expert monetary land evaluation (art. 201 LCU, art. 1 and others LU On land evaluation).
Tax monetary land evaluation is “capitalized income generated by land parcel, which is calculated according to established standards” (art. 1 LU On land evaluation); it is used for calculating land tax, the losses of agricultural and forestry production, providing economic incentives of sustainable land use and land protection etc (art. 13 LU On land evaluation, § 3 art. 201 LCU).
Monetary tax evaluation of agricultural lands was fully performed in Ukraine before 01.07.19959. As of 01.01.2007 monetary tax evaluation of non-agricultural lands outside settlements was performed only for 271,93 thousand ha (2,4% of the total size). Out of 29904 settlements in Ukraine tax monetary evaluation was made for 20067 settlements (67,1%) which constitues 5352,1 thousand ha (73,0%)10.
Legislation. According to § 5 Art. 201 LCU, art. 12 LU On land evaluation, the methods for monetary land evaluation are to be approved by CoM. Now there are Methods for tax monetary evaluation for agricultural lands and lands within settlements approved by the Regulation of CoM of 23.03.1995 №213, and Methods for tax monetary evaluation for non-agricultural lands (except for the lands within settlements) approved by the Regulation of CoM of 23.11.2011 №1278.
The methods mentioned are supplemented by the orders of the State Committee for Land Resources of Ukraine, the Ministry of Agricultural Policy of Ukraine, the Ministry of Building and Architecture of Ukraine, the Ukrainian Academy of Agricultural Sciences On the Procedure of tax monetary evaluation for agricultural lands and lands of settlements of 27.01.2006 №18/15/21/11 and of the State Committee for Land Resources of Ukraine, the Ministry of Agricultural Policy of Ukraine, the Ministry of Building and Architecture, the State Committee for Forestry, the State Committee for Water Supply, the Ukrainian Academy of Agricultural Sciences On the Procedure for tax monetary evaluation for non-agricultural lands (except for the lands within settlements) of 27.01.2006 №19/16/22/11/17/12.
Valuers. § 3 art. 18 LU On land evaluation establishes that evaluation should be performed “by the legal entities, which have license for land survey works”.
In fact the certificates on tax monetary evaluation are issued by land resources authorities, it is technical documentation of land evaluation what is developed “by the legal entities, which have license for land survey works”. Evaluation performed by tax authorities, as well as by owners and tenants themselves, does not correspond to the law, which is recognized in court practice.
Indexing. According to item 289.2 art. 289 TCU, monetary land parcel evaluation should be indexed as of January 1 annually according to the formula established in this article.
Revaluation. Due to changes in land use the evaluation might become outdated, which causes the need to perform revaluation. Currently law establishes only the frequency of such revaluation (art. 18 LU On lands evaluation): for agricultural lands – “at least once in 5-7 years”, for non-agricultural lands “at least once in 7-10 years”. The wording of law is extremely ambiguous not only in English, but also in original Ukrainian text.
Examples of certificates of tax monetary land parcel evaluation
(full-size copy is available at www.amm.org.ua)
Example of an excerpt from technical documentation on tax monetary land parcel evaluation
(full-size copy available at www.amm.org.ua)
Expert monetary lands evaluation is legislatively defined as “a result of value determination of a land parcel and rights attached to it by a valuator (expert for issues related to land parcel evaluation) using the complex of approaches, methods and evaluation procedures which ensure data collection and analysis, performing calculations and finalizing results as a report” (art. 1 LU On land evaluation); it is used in transactions with land parcels (§ 4 art. 201 LCU).
Situations, when expert monetary lands evaluation is required, are defined by § 2 art. 13 LU On land evaluation (alienation and insuring state or municipal land parcels, mortgaging land parcels etc).
The general rules on expert monetary lands evaluation are set by art. 19 LU On land evaluation. Evaluation is based upon the following methods: (1) capitalization of operating or net profit generated from a land parcel; (2) comparing purchase prices for similar land parcels; (3) calculating expenses necessary for land improvement. Expert evaluation is governed also by the Regulation of CoM of 11.10.2002 №1531 On expert monetary land parcel evaluation.
Fragments of opinion on expert land parcel fragment evaluation
(see www.amm.org.ua for a full-size copy)
(д) State land parcels registration
The legal foundations for state land parcels registration are defined by art. 24 LU On State land cadastre, the Procedures for State land cadastre, approved by the Regulation of CoM of 17.10.2012 №1051. In particular, according to art. 24 of said law:
“1. State land parcel registration is performed in the procedure of its formation through creating a Land book for this land parcel.
2. State land parcel registration is performed at the place of its location by the relevant State cadastre registrar of the local unit of the central executive land resources authority in the cities of Kyiv and Sevastopol, cities of republican scale (scale of the Autonomous Republic of Crimea) and oblast scale, in rayon.
9. In the course of state land parcel registration a cadastral number is attached to the land parcel.
Land book example
(see www.amm.org.ua for a full-size copy)
Excerpt from Land book
(full-size copy is available at www.amm.org.ua)
NB. In the cities of Kyiv, Odesa, Sevastopol, Simferopol, Kharkiv, Mylolayiv, Chernivtsi and some others city councils created within their executive bodies special land resources units responsible, in particular, for certifying land titles. These units are not included into the nation-wide system of state land resources authorities11.
The Decision of the High Commercial Court of Ukraine of 20.04.2010 in the case К-8025/09 (Kyiv city council vs. the State Committee for Land Resources of Ukraine) the court indirectly declared the practice of certifying the titles to land by local self-government executive bodies to be legitimate. In my opinion, by doing so the court made a mistake, as it referred to the provisions of LU On local self-government in Ukraine, which were in fact replaced by the more recent provisions of LCU (arts. 202, 204), which allocated the relevant functions (exclusive by their nature) to state land resources authorities.
LU On State land cadastre (§ 11 ch. VII) positively legitimized the practice of managing State land cadastre by the executive body of the Kyiv city council till the year (this provision was likely to be intended for retroactive application). However, later, even before the entry of the said law in force, the provision was repelled.
(е) Accounting land quantitative and qualitative characteristics
According to art. 203 LCU, accounting land quantitative characteristics “reflects data characterizing each land parcel by its size and the types of lands within it”, and accounting land characteristics “reflects data characterizing lands by their natural characteristics and those characteristics acquired, which influence their fertility, as well as by the degree of soil pollution”.
The Order of the State Committee for Land Resources On the basic level accounting of land parcel based on their cadastre numbers and on the database standard of the automated system of keeping State land cadastre of 12.10.2000 №133 introduced accounting of land parcels on the basis of their cadastral numbers.
Accounting land quantitative and qualitative characteristics per se, as opposed to registration, does not establish any rights and obligations. Though, registration can be regarded as a type of accounting in its wider sense, together with statistical reporting (see LU On the state statistics, the Order of the State Committee for Statistics №377 of 05.11.1998 On approval of the forms for state statistical reporting on land resources and the Rules of filling in the forms of state statistical reporting for accounting quantitative characteristics of lands (forms №№ 6-зем, 6а-зем, 6б-зем, 2-зем). Statistical data obtained though state statistical reporting are extensively used by state tax authorities for collecting land tax.
NB. Experts12 point to the fact that the existing data on accounting lands (forms 2-зем, 6-зем) are accounting in fact not lands but the entities using them. Statistical data are collected based on the assumption that the entity uses land according to its main sphere of business activity. This assumption is not always correct.
1 Колотинская Е.Н. Правовые основы советского земельного кадастра. – М.: изд-во Моск. Ун-та, 1980. – С.15, Колотинская Е.Н. Правовые основы земельного кадастра в России. – М.: Изд-во МГУ, 1968. – С.8.
2 Кулініч В.В., Мартин А.Г., Євсюков Т.О. Деякі аспекти вдосконалення земельно-кадастрового обліку для потреб еколого-економічної оцінки земель // Землевпорядний вісник. – 2004. - №4. – С.12-15.
3 Геодезія. Терміни та визначення. ДСТУ 2393-94. – К.: Держстандарт України, 1994.
4 Гнаткович Д.І. Розвиток науково-методичних положень державного земельного кадастру – інформаційної бази здійснення земельної реформи // Землевпорядний вісник. – 1998. - №3. – С.14.
5 Кулініч В.В., Мартин А.Г., Євсюков Т.О. Деякі аспекти вдосконалення земельно-кадастрового обліку для потреб еколого-економічної оцінки земель // Землевпорядний вісник. – 2004. - №4. – С.13.
6 Третяк А.М. Управління земельними ресурсами та реєстрація землі в Україні. – К., 1998. – С.86.
7 Канаш О.П.Сучасні проблеми грошової оцінки земель сільськогосподарського призначення // Землевпорядкування. – 2001. - №1. – С.62.
8 Шляхи підвищення ефективності управління земельними ресурсами міст України. – К.: ІРЦ «Реформування земельних відносин в Україні», 2005. – С.80.
9 Манько І.П.Удосконалення механізму грошової оцінки землі у реалізації державної земельної політики // Землевпорядний вісник. – 2003. - №4. – С.66.
10 Про підсумки діяльності Держкомзему за 2006 рік та завдання на 2007 рік // Поточний архів Державного комітету України по земельних ресурсах.
11 Актуальні питання розвитку земельної реформи в Україні / А.С. Даниленко, Ю.Д. Білик, М.Ю. Гарбуз та ін.; За ред. Ю.Д. Білика – К.: Урожай, 2004. – С.84.
12 Федорченко М., Янов О. Земельне право України: посібник для практиків у двох томах. Т. 1. Земельні відносини в населених пунктах / За заг. ред. М. Федорченка. – К., 2006. – С.54.