Whole journal

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Whole journal

NATIONAL
SECURITY & DEFENCE
π 6 (124)
2011
Founded and published by:
CONTENTS
CADASTRE REGISTRATION SYSTEM IN UKRAINE:
PRESENT STATE AND PROSPECTS OF DEVELOPMENT
(Razumkov Centre’s analytic report) ............................................................................... 2
WHAT SHOULD THE CADASTRE REGISTRATION SYSTEM IN UKRAINE LOOK LIKE:
EXPERT POLL
(Annex 1) ...................................................................................................................... 28
UKRAINIAN CENTRE FOR ECONOMIC & POLITICAL STUDIES
NAMED AFTER OLEXANDER RAZUMKOV
Director General
Editor-in-Chief
Layout and design
Technical & computer
support
Anatoliy Rachok
Yevhen Shulha
Volodymyr Kushnirenko
Oleksandr Shaptala
Volodymyr Kekukh
This journal is registered with the State Committee of
Ukraine for Information Policy,
registration certificate KB №4122
Printed in Ukrainian and English
Circulation: 3,800
Editorial address:
16 Lavrska str., 2nd floor,
Kyiv, 01015
tel.: (380 44) 201-11-98
fax: (380 44) 201-11-99
e-mail: [email protected]
website: www.razumkov.org.ua
Reprinted or used materials must refer to
“National Security & Defence”
PUBLIC OPINION ABOUT THE LAND MARKET
AND CADASTRE REGISTRATION SYSTEM AS ITS ELEMENT ........................................ 30
STATE REGISTRATION SYSTEM IN UKRAINE: EXPERT OPINIONS
(Roundtable by correspondence).................................................................................. 38
THE MAIN QUESTION LIES NOT AS MUCH IN THE NUMBER OF INFORMATION
SYSTEMS AS IN THE PROCEDURE OF THEIR FILLING AND OPERATION
Valeriy BEVZENKO ............................................................................................... 38
STATE LAND CADASTRE IN UKRAINE: THE STATE AND PROSPECTS
Mykola KALYUZHNYI ........................................................................................... 39
STATE LAND CADASTRE AND REGISTRATION OF TITLE TO IMMOVABLE
PROPERTY: JOINTLY OR SEPARATELY?
Volodymyr RYBAK ............................................................................................... 40
CADASTRE AND REGISTRATION SYSTEM IN UKRAINE:
PROSPECTS OF COEXISTENCE
Roman TKACH ..................................................................................................... 41
TO DECIDE ON THE OBJECTIVES AND PRIORITIES OF THE STATE LAND
POLICY AND REGAIN PROFESSIONALISM OF STATE LAND SERVICES
Іhor YATSUK ........................................................................................................ 43
ARTICLES
A SYSTEM OF CADASTRE, OR A REGISTER OF TITLE?
WHAT WE ARE CREATING, AND FOR WHOM
Serhiy KUBAKH ............................................................................................................. 44
PROSPECTS OF STATE LAND CADASTRE DEVELOPMENT IN UKRAINE
Andriy MARTYN ............................................................................................................ 48
Photos:
r_catalog.ua – р.7
novaya.com.ua – р.11, www.zem.ru – р.12,
anaparegion.ru – р.39, www.itogi.ru – р.41,
gazeta.a42.ru – р.42, nnm.ru – р.57,
bataysk.narod.ru – р.63
UKRAINIAN PARADOXES AND PROBLEMS
OF STATE LAND CADASTRE DEVELOPMENT
Anton TRETYAK ............................................................................................................ 52
The project was implemented through
support provided by the International
Renaissance Foundation
RESULTS OF THE LAND RELATIONS REFORM AND PROSPECTS
OF THE LAND MARKET INTRODUCTION IN UKRAINE
Anatoliy YURCHENKO ................................................................................................... 61
The publication of this journal has been supported
by the National Endowment for Democracy (USA)
© Razumkov Centre, 2011
AN IDEALIZED MODEL LAND ADMINISTRATION SYSTEM:
A THOUGHT EXPERIMENT
Malcolm D. CHILDRES .................................................................................................. 56
LAND REFORM, CADASTRE OF IMMOVABLE PROPERTY AND CARTOGRAPHIC,
GEODETIC AND CADASTRAL SERVICES IN UKRAINE AND THE CZECH REPUBLIC
Aleš TŘÍSKA, Milan KOCÁB, Alexandr DRBAL ................................................................... 64
ЗАОЧНИЙ КРУГЛИЙ СТІЛ
CADASTRE REGISTRATION SYSTEM
IN UKRAINE: PRESENT STATE AND
PROSPECTS OF DEVELOPMENT
A
proper state land policy, a transparent and investment-friendly market of land (and immovable property in general) in
the first place require thorough and full land records, impartial grounds for their valuation and unconditional protection
of ownership rights to immovable property (land parcels and immovable property inseparably related with them.)1 In the
world practice, the outcome data of those processes are stored either in a single state cadastre registration system, or
in a state land cadastre and a state system of registration of rights to immovable property2 (Insert “Cadastre registration
system: reference”, p.4–5).
If the cadastre and/or the mentioned systems are absent, the state cannot properly manage land resources (including
collection of reasonable rates of the land tax and immovable property tax, guarantee of efficient use and protection of land,
and, finally, introduction of the free market of land, including farming land),3 individuals and legal entities are not protected
against encroachments on their property, agricultural producers cannot freely dispose of their land parcels and adequately
use mortgage mechanisms.
Such situation persists in Ukraine even now, despite the fact that independent Ukraine faced the task of building the
cadastre registration system when Western Europe was already implementing the “cadastral” reform started in 1980s.
Ukraine could well use its experience, moreover that, first, many post-socialist countries did the same; second, the EU
member states, other developed countries of the world, supporting Ukraine’s European aspirations, were ready not only to
share the gained experience and “best practices”4, pay for study tours of Ukrainian politicians, officials and experts, development and publication of methodological guides and drafts of regulatory acts, etc. but also to finance or credit projects of
introduction of the world best practices in Ukraine.5
For instance, in 2003, Ukraine obtained a preferential credit from the World Bank for creation, among other things,
of a single automated cadastre registration system. However, Ukraine missed even that opportunity to create such an
advanced system.
Now, this subject is actualised, first, by the Verkhovna Rada of Ukraine adopting the Law “On State Land Cadastre”
that, along with amendments to the Law “On Registration of Ownership Rights to Immovable Property and Their Encumbrances” passed in 2010, once again fundamentally changed the conceptual approach to the cadastre registration system
building in Ukraine. While previously, the talk was mainly about a single (unitary) automated system, now, the Government
plans building a two-component (dual) one, where the state land cadastre is created and kept by one agency, and the
register of ownership rights by another one.
Second, it is actualised by the authorities’ intention to introduce the farming land market from the beginning of 2012.6
Indeed, Ukraine has been losing a lot economically in course of the 10-year moratorium on purchase and sale of farming
land.7 On the other hand, there are risks of the “free market” evolution into a process similar to the “voucher privatisation”
of the early 1990s, since there is still no proper institutional basis for market circulation of immovable property, including
land parcels.
Presented below is a summary analytical-information report that briefly describes the present state and efficiency of
the operational elements of the cadastral and registration systems in Ukraine: the completeness and quality of their data,
the state of protection of ownership rights. It also draws conclusions and proposes some steps and measures aimed at
minimisation of effects of introduction of the dual cadastre registration system and cancellation of the moratorium on purchase and sale of farming land in the present Ukrainian conditions.
1
For more detail on the rationale, economic and social reasons for introduction of the cadastre registration system see the article by Serhiy Kubakh “A system
of cadastre, or a register of title? What we are building, and for whom?” published in this journal.
2
Exactly those institutes are seen as the necessary key elements of the institutional basis of the land market.
3
For more detail on the present state land policy see: State land policy in Ukraine: standing and development strategy. Razumkov Centre analytical materials. –
National Security & Defence, 2009, No.3, p.218.
4
See, e.g., the article by A. Tříska, M.Kocáb, A.Drbal “Land reform, cadastre of immovable property and cartographic, geodetic and cadastral services in Ukraine
and the Czech Republic” published in this journal.
5
Among long-term projects one can mention, e.g., the Project in support for land privatisation in Ukraine (supported by the US Agency for International
Development (USAID)), the German-Ukrainian Agricultural Policy Dialogue (supported by the Bundesministerium für Ernährung, Landwirtschaft
Verbraucherschutz), etc.
6
Noteworthy, the annual Presidential Address “Modernisation of Ukraine – our strategic choice” spoke of introduction of the land market from January 1,
2013. The relevant section of the Address named the steps that should precede market liberalisation, e.g.: adoption of the Laws “On State Land Cadastre”, “On
State Land (Mortgage) Bank”; “On Land Mortgage”; “On State Land Inventory”; “On State Land Service”; “On Land Zoning”; “On Management of State-Owned
Lands”; “On State Support for Conservation and Rehabilitation of Soil Fertility”; “On Economic Encouragement of Rational Use of Farming Land”; and the need
to “finish creation of the state land cadastre”. – Official Internet office of the President of Ukraine, p.115 (in Ukrainian).
However, as soon as April 7, 2011, presenting the Address, the President said: “The main task [includes] the launch of a fully-fledged land market in the
forthcoming years and simultaneous provision of reliable legal guarantees of land use according to its direct purpose.” – Ibid. (emphasis added – Ed.).
By the way, the Address makes no mention of the state and prospects of enhancement of ownership rights protection in Ukraine. It only speaks of perfection
of the regulatory and tax policy.
7
For instance, according to the UN Economic Commission for Europe (UN ECE), at least 20% of GDP of developed states originate from the land market
(and inalienable from it real estate market). See: Legal and institutional aspects of agricultural land markets in Ukraine: German-Ukrainian Agricultural Policy
Dialogue – Institute for Economic Research and Policy Consulting (IER), Bundesministerium für Ernährung, Landwirtschaft Verbraucherschutz, Kyiv, 2007,
p.3. – IER website, http://www.ier.com.ua.
2
• RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • №6, 2011
CADASTRE REGISTRATION SYSTEM IN UKRAINE
1. STATE LAND CADASTRE AND STATE
SYSTEM OF REGISTRATION OF OWNERSHIP
RIGHTS TO IMMOVABLE PROPERTY IN
UKRAINE: INSTITUTIONAL SUPPORT
1.1. The institutional basis for any social relations,
including land and/or property relations, is made
up: first, of the regulatory-legal framework that
by definition should be stable, integral, consistent,
sufficient for regulation of the concerned relations, clear
for the public, and rule out controversial interpretation
of provisions of regulatory-legal acts; second, of a
balanced, functionally sufficient system of organisations
(institutions) that on the basis of regulatory-legal acts
immediately secure and defend rights of individuals
and legal entities (and control performance of their
duties) in the field of those relations.
1.2. Currently, in Ukraine, the institutional basis
for the creation and keeping of the state land cadastre
and the system of registration of rights to immovable
property (both regulatory-legal and organisational)
notably lags behind the needs and practice of the land
reform and regulation of ownership relations. It still
remains insufficient, too transient, controversial and,
as a result, inefficient, enabling manipulations with
land and title to land parcels and other immovable
property.1
At parliamentary hearings on March 23, 2011, the
Verkhovna Rada Chairman Volodymyr Lytvyn said that
the land relations in Ukraine were currently regulated by
37 laws (amended 86 times, including the Land Code –
48, the Law on Land Lease – 22), 64 Parliamentary
Resolutions, 178 Presidential Decrees, 84 Governmental
Resolutions and 758 bylaws,2 all in all – over 1,100
regulatory-legal acts. At that:
(1) the Land Code (2001), designed to lay down the
main principles of the land market operation, has not
been used for regulation of farming land circulation so
far, since simultaneously with its adoption, a moratorium
on its alienation was imposed, still in force;3
(2) for full-scale implementation (effectiveness), the
Land Code provided for the development and adoption
of another 38 laws that were supposed to regiment land
relations and create the basis for introduction of a transparent
market of immovable property, purchase and sale of farming
land, protection of ownership rights to immovable property.
Currently, only 17 of them have been adopted, some
issues are regimented by the Civil (2003), Business (2003)
and Tax (2011) Codes and some other legislative acts.4
However, even now (10 years after the Land Code
adoption), there are no laws in absence of which,
legislative support for land relations cannot be deemed
full enough, e.g., “On Land Zoning”, “On State Land
Inventory”, “On Management of State-Owned Lands”,
“On Land Market” (“On Farming Land Market”), “On
State Land (Mortgage) Bank”, etc. The Law “On State
Land Cadastre” was passed by the Verkhovna Rada only
in July, 2011;5
(3) legal definitions of the notions present in
legislative acts are not always exhaustive, consistent and
correspond to the world practice. For instance, after the
Land Code entered into effect, the only legal definition of
the State Land Cadastre (SLC) was not correct and did not
meet the world analogues, since the Code terms cadastre
(corpus of data) as a “system of works”6 (Insert “Legal
definitions of SLC: effective legislative acts and bills”, p.6).
Similarly incorrect is the Code’s definition of land relations
as “social relations concerning possession, use and disposal
of land”.7 Experts encounter problems with definition
EXPLANATION OF SPECIAL TERMS USED IN THE TEXT
Mortgage – pledge of immovable property (land) for getting a credit (loan), whereby the pledged property stays with the borrower (or a
third party – property guarantor) but the creditor may have its monetary claims met at the expense of the pledged property in case the
borrower fails to meet obligations provided by the mortgage agreement;
Emphyteusis – the right to use a land parcel that belongs to another owner for farming (as a rule, long-term);
Encumbrance of ownership rights – a ban to dispose of and/or use immovable property, either established by the law or authorised state
bodies (easement), or arising on the basis of agreements (e.g., agreements of mortgage, lease);
Property right – a kind of ownership rights that formalises and establishes belonging of things (material items) to actors of civil law
relations by means of appropriate registration of said right;
Easement – the right to limited use of a land parcel (or its part) that belongs to another person (for instance, the right to pass, transit, lay
communication lines, etc. across a neighbouring land parcel);
Superficies – the right to development of a land parcel that belongs to another owner.
1
It is worth notice that Razumkov Centre experts wrote about the lag of regulatory-legal support behind the needs of the land reform and regulation of property
relations (and gaps in that support) as one of the key factors of the chaos, irregularity and actually asocial nature of the second stage of the land reform (sharing
of land and especially of collective farm property) and a precondition for grey and criminal economic activity in agriculture yet in 2001. See: Agrarian reform in
Ukraine: achievements and miscalculations. UCEPS Analytical Report. – National Security & Defence, 2001, No.5, p.32-36; for proposals aimed at promotion of
civilised land relations and introduction of a transparent land market see: Ibid., p.52-55.
2
Parliamentary hearings on March 23, 2011: “Land in Ukraine’s fate: situation in the land sector, legislative support for land relations and practice of its
implementation”. Records, p.1. – Official website of the Verkhovna Rada Ukraine, http:www.rada.gov.ua (in Ukrainian).
3
At first, the moratorium was imposed for a transitional period – till January 1, 2005; later (in 2004), Parliament, overruled the veto imposed by President Leonid
Kuchma and extended the moratorium till January 1, 2007. The Moratorium was not effective from December 31, 2006, till January 13, 2007, since President Viktor
Yushchenko vetoed down the Law on amendment of the Land Code (of December 19, 2006) that made the moratorium expiry term dependent on the readiness of
the relevant regulatory-legal framework. However, on January 9, 2007, Parliament overruled the veto, and on January 11, the President signed the Law.
4
At that, one should note the arisen and still present collisions between the provisions of, e.g., the Land and Civil Codes.
5
At the time of preparation of this journal, it was only known that the Verkhovna Rada adopted Bill No.8077. The Verkhovna Rada website hosts the text of the
Bill prepared for the second reading. The final text of the Law is absent. It reads that the Law was sent for the President’s signing on July 18, 2011.
6
For instance, commenting on the Bill “On State Land Cadastre” (reg. No.8077 of February 4, 2011), the above-mentioned World Bank’s project manager
Serhiy Kubakh noted that so far, the bills on SLC contained “miscomprehension of the cadastre – saying that it meant “state measures”, “a state policy” or “a
system of cadastral works”… Now, the cadastre definition meets the European and world perception as an information system. The title and the subject of the
law finally met”. See: Nahorna О. What kind of a cadastre are we “building”? – Information website “Land reform in Ukraine”, Rural Land Titling & Cadastre
Development project, May 19, 2011; http://zemreforma.info (in Ukrainian).
7
Therefore, the definition ignores such important elements of land relations as rational land use, land resources management, etc. For more detail see:
Siryachernko І. Proposals for perfection of codification of the land legislation of Ukraine. – Website “Environmental law of Ukraine”, http://ecopravo.hostua.org.
ua (in Ukrainian).
RAZUMKOV CENTRE
• NATIONAL SECURITY & DEFENCE • №6, 2011 •
3
CADASTRE REGISTRATION SYSTEM: REFERENCE
The term “cadastre” was introduced to the French legal system
the deed). In such case, losses inflicted on one of the parties to an
agreement are reimbursed by an insurance company.3
to denominate a body (corpus, register) of some data of taxable
items. Initially, the land cadastre had a fiscal nature (fiscal cadastre)
Title registers provide for registration of ownership rights (titles).
and was confined to accounting, description and valuation of land
The right is proven with a register record and a document issued
and other immovable property for taxation needs. With time, there
by a registrar. Title registration envisages mandatory verification
appeared special cadastres recording and describing other items
of purity of the title and transfer of ownership rights. Authenticity of
(water, forest, farming lands, etc.) mainly with the purpose of
the register data is guaranteed by the state. In case of a registration
getting trustworthy data of those items as the basis for their efficient
system error, the damaged party shall be reimbursed for all damages.
administrative and/or business management.
At present, the so-called Torrens system is considered the classic
In parallel with the land cadastre system, there was (in one or
title
system. Registration rests on a cadastral file that contains three
another form) a system of recording (registration) of ownership rights
elements: (1) technical, business and legal properties of immovable
to land and other immovable property, whose data were used not
property (identification number of an item, its cadastral survey and a
only for taxation but also for legal protection of those rights (juridical
certificate of the site history are obligatory); (2) required data of the
cadastre).
owner (land user); (3) encumbrances and/or limitations (warnings).
It should be particularly noted that as a rule, the legal notions
of “land” and “real estate” are used as synonyms, since they
THE MAIN PRINCIPLES OF A REGISTRATION SYSTEM INCLUDE:
denominate “immovable property”: a land parcel and immovable
• indisputability (the ownership right may be nullified,
property inalienably connected with it (for instance, buildings).
There is a difference between a cadastre and a system of
registration of ownership rights.
The land cadastre focuses on land (a land parcel) and its
physical properties. That is why it should contain sufficient data
describing the item (its size, boundaries, geospatial location, soil
quality, category of land by the target purpose (economic and
pecuniary valuation), as well as the data of the owner/user and
immovable property inseparably connected with the land parcel. A
cadastre, by definition, is to cover the entire territory of a country.
The system of registration of ownership rights to immovable
property focuses on ownership/use rights (i.e., legal properties), so,
that Register is to contain first of all data of ownership rights to land
parcels and immovable property inseparably connected with them,
of subjects of those rights, as well as data of immovable property,
including land parcels – their volume may be much smaller than of
those contained in the land cadastre (the minimum required volumes
sufficient for identification). By contrast to the Cadastre, the Register
rights may deal only with the items that are or may be involved in
market circulation.1
By and large, the European rule of determining the volume of
data in cadastre registration systems envisages that information there
should be confined to the data necessary for registration of rights,
valuation of land and immovable property for taxation purposes,
encouragement of the market of immovable property (including land),
efficient management of land resources and promotion of sustainable
development.
REGISTRATION OF OWNERSHIP RIGHTS
By and large, there are two kinds of registers of ownership
rights – of deeds, and titles.2
Deed registers (in fact, registration of title documents of legal
deeds, transactions). The right is certified with a deed as such and/
or a document certifying ownership rights. The registrar’s (notary’s)
function is confined to the establishment of identities of the parties
to an agreement and exact recording of its time. At that, a register
of deeds may be used for a retroactive check of the title purity.
I.e., the function of guarantee of rights in fact rests with notaries;
the state provides no guarantees to parties to the deal. Hence, to
minimise risks associated with transactions involving immovable
property (especially with a system of registration of deeds), a title
insurance system is introduced (if a purchase and sale agreement
is disputed by one of the parties or a third party). In countries with
deed registration, as a rule, no agreement of purchase and sale of
immovable property can be effected without simultaneous conclusion
of an agreement of insurance of the financial risk for a definite term
(but not more than the term of limitation of action with respect to
cancelled or invalidated solely through court);
• absolute nature of registration (the register is the place of
data storage and access; ownership rights are transferred
solely by a register entry; if a transaction is not registered, it
has no legal effect; there are no unregistered rights);
• limitations of information (every person may get information
only about the registered rights that influence his or her
ownership rights; the system protects only a bona fide buyer –
if he or she gets the title in the result of unlawful actions of
the seller but there was no his fault in the transaction, his or
her ownership right is recognised); noteworthy, in Ukraine,
this principle does not work: Article 388 of the Civil Code of
Ukraine allows taking property from a bona fide acquirer, not
providing any compensation whatsoever;
• compensation – any damage inflicted on a registration
system user is to be reimbursed in full, for which, a fund for
obligatory insurance of responsibility of registrars or another
special fund is created. In most developed countries, losses
inflicted on immovable property owners in cases clearly
provided by the law are covered by the state at the expense
of either the budget or special funds.
TRENDS OF DEVELOPMENT OF CADASTRES AND REGISTERS
OF RIGHTS, “CADASTRAL” REFORMS AND CREATION OF LAND
INFORMATION SYSTEMS
Since, as we noted above, a cadastre and a register of rights,
dealing with the same items (immovable property), describe their
different properties, those systems (cadastral and registration) can
operate separately of each other and be subordinated to different
state bodies (two-component cadastre registration systems), as the
case is now in Austria, Greece, Denmark, Finland, Germany, France,
Croatia and some other countries of the world.
Meanwhile, information technologies’ development (including
geo-information systems), on one hand, and globalisation
processes that reanimate immovable property markets (including
transnational), toughening requirements to promptness, reliability
and scope of information on immovable property, on the other, give
rise to a number of new trends in the cadastre registration system
development. Among them, the following should be mentioned:
(1) creation of multipurpose cadastres and registers of
ownership rights. Such cadastres store information about land
parcels and other immovable property that can be used not only
for fiscal and accounting purposes but also for a wider range
of functions, including introduction of good governance of land
resources in line with the principles of sustainable development.
Multipurpose registers of rights, in particular, give wider opportunities
for protection of ownership rights, lead to a decrease in the number
of court actions concerning such rights and generally improve the
1
In this context, the words by Jo Henssen are often mentioned, saying that that a cadastre answers the questions “where” and “how much” property is found, and a register – “who” and
“on what basis” owns it. See: Kaufmann J., Steudler D. Cadastre 2014. A Vision for a Future Cadastre system, p.19. – International Federation of Surveyors (FIG) website, http://www.fig.net.
2
The world practice also distinguishes unofficial transfer of rights to land, or transfer of rights to immovable property in private, where documents of title are transferred by the
seller to the buyer in presence of a lawyer. However, this method is deemed inefficient (since it has no positive influence on land planning) and potentially dangerous for transaction
participants.
3
For more detail see: Martyn A., Koshel А. Title insurance of land parcels as a way to protect property rights of land owners. – January 28, 2011, http://osipov.kiev.ua (in
Ukrainian).
4
investment climate in a country. At that, introduction of multipurpose
cadastres (registers) is achieved through allocation of dedicated
(common) channels of access to their databases for users making
the relevant requests;
(2) integration of data of the land cadastre (including its
cartographic support) and the register of rights to land and other
immovable property in united (centralised on the national level)
automated cadastre registration systems. This trend is observed
from early 1980s and got the name of a “cadastral reform”, for its
currently universal character.4 In it, “fiscal” and “legal” registers
(cadastres) are united in a universal cadastre registration system
(multipurpose cadastre) combining functions of recording immovable
property (cadastral) and registration of rights to it (legal) and whose
data have multiple purposes and uses (in particular, an automated
cadastre makes the basis for creation of the national infrastructure
of geospatial data).
In its accomplished form, it is manifested in the merger of
functions of cadastre keeping, registration of rights and cartographic
activity in one institution (like the Dutch Agency of Cadastre, Land
Registration and Cartography).
Single (united, unitary) systems now operate in Italy, Canada,
the Netherlands, Finland, the Czech Republic, Sweden and other
countries, are being created in Iceland and Norway. The path of
creation of a single system was also chosen by the transitional
countries (Belarus,5 Armenia, Georgia, Lithuania, Russia,6 Romania,
etc.). Up until recently it seemed that Ukraine would go the same way.
A united system means the emergence of an entirely new thing –
the land information system (LIS). The International Federation
of Surveyors (FIG) defines such system as “a tool for legal,
administrative and economic decision making, and an aid for planning
and development which consists of a database containing spatially
referenced land related data for a defined area and of procedures and
techniques for the systematic collection, updating, processing and
distribution of that data”.
Additionally, it enables informational interaction (unification) of
national systems, turning them into transnational networks.
For instance, in 2006, the EU began the creation of the European
Land Information Service (EULIS), uniting real-time cadastre
information systems of Austria, Lithuania, the Netherlands, Norway,
Finland, Sweden and other EU countries.
MAIN PRINCIPLES OF SINGLE SYSTEM BUILDING:
• maintenance of the system of registration of rights to
immovable property on the basis of records of land parcels
(a land parcel and real estate are viewed as a single item of
immovable property);
• rights to land parcels and immovable property are registered
in one Register of rights;
• rights are registered and cadastral maps are kept by the same
institution;
• registration of rights is an administrative function (state
registration of rights should be separated from judicial and/
or notary bodies);
• the state bears responsibility for the authenticity of
registration data and defends registered ownership rights;
• the system services mainly target the user;
• the system of registration of rights is self-repaying.
In such conditions, the state concentrates financial, technical
and other resources in one institution, removes duplication of the
registrar’s functions, names one point of contact responsible for the
authenticity of information entered into registers. Such system is
convenient for citizens, legal entities, state authorities and local selfgovernment bodies.
CADASTRE 2014
The general trend of reformation of the European cadastre
registration systems was set by the Cadastre 2014 initiative put
forward in 1994 by the International Federation of Surveyors (FIG).
The Initiative studied the systems of over 30 countries, identified
their weak and strong points. On the basis of the study results, they
came to the conclusion of the expediency of prompt unification of
cadastral and registration systems through their merger and outlined
the main lines of the cadastre system development for the next 20
years:
• automation of systems and procedures of transactions and
description of items, cadastral recording and registration
(digitisation of all data);
• completeness of description of the legal status of land, with
all public rights, encumbrances and limitations;
• full coincidence of the legal and documentary description of
an item and its spatial description on cadastral maps;
• shift from the use of maps only as an illustration to the
information model of a real item (territory) using the
capabilities provided by cartographic information systems;
• employment of the private sector for formation and
description of cadastral record objects (encouragement of
market land planning works);
• self-repayment of cadastre systems.
The document suggests the following definition: “Cadastre 2014
is a methodically arranged public inventory of data concerning all
legal land objects in a certain country or district, based on a survey
of their boundaries. Such legal land objects are systematically
identified by means of some separate designation. They are defined
either by private or by public law. The outlines of the property, the
identifier together with descriptive data, may show for each separate
land object the nature, size, value and legal rights or restrictions
associated with the land object.
In addition to this descriptive information defining the land
objects, Cadastre 2014 contains the official records of rights on the
legal land objects.
Cadastre 2014 can give the answers to the questions of where
and how much and who and how.
Cadastre 2014 can replace the traditional institutions of
“Cadastre” and “Land Registration”. It represents a comprehensive
land recording system.”7
The document pays particular attention to the need of support for
sustainable development. For that, the following aspects are deemed
important:
•
•
•
•
•
•
•
•
•
•
guarantee and protection of ownership rights to land
security of lending guarantees
monitoring of land resources and their development
assistance with collection of taxes on land and immovable
property
protection of state-owned lands
a decrease in the number of land disputes (amendments,
corrections)
facilitation of the land reform
perfection of the land use planning
assistance with land resources management
provision of statistical data
Only if those aspects are taken into account in the cadastre
registration system creation and keeping, one can hope for political
stability in the country, an end to conflicts o9f public and private
interests, promotion of the national economy growth on the principles
of sustainable development.8
4
This trend is also noted in the Land Administration Guidelines, issued by the UN in 1996: “The ownership, value and use of land, although independent in concept, are
interdependent in practice”.
5
For more detail see: Shavrov S.А. Access to the single state register of immovable property, rights to it and deals with it. – http://belisa.org.by/pdf/PTS2005/6671.pdf (in
Russian).
6
See, e.g.: Radionova Т.А. Experience of creating systems for real estate recording and registration in European countries. – www.dataplus.ru (in Russian).
7
Kaufmann J., Steudler D. Cadastre 2014. A Vision for a Future Cadastre system… , p.21.
8
Ibid., p.38-40.
RAZUMKOV CENTRE
5
of the “immovable property”, alongside with which, the
legislation uses such terms as “immovables”, “real estate”,
and “other terms also meaning immovable items”.8 There
are numerous proposals of elaboration of formulations
of the Land Code and effective legislative acts, in view
of their insufficient notional clarity and abidance by the
requirements of the law science.9
The vagueness of definitions and formulations in
many effective laws and other regulatory-legal acts
leaves room for their arbitrary interpretation. For
instance, in one interview given in 2009, then Deputy
Head of the State Committee for Land Resources Oleh
Kulinich admitted: “Interpretation of the legislative
framework, now existent and not bad, primarily depends
on… the person applying one or another law or
resolution or directive.”10 This enables not only a variety
of interpretations but also the practice of courts passing
entirely opposing rulings in the same case;
LEGAL DEFINITIONS OF SLC IN UKRAINE: EFFECTIVE LEGISLATIVE ACTS AND BILLS
use, as well as data of quantitative and qualitative description of
lands, their valuation, land distribution among owners and users
The State Land Cadastre is a single state system land cadastral
(Bill No.8077, prepared for the second reading on July 5, 2011).
operations that specifies the procedure of recognition of the fact of
For comparison
emergence or termination of ownership rights and the right to use
land parcels and contains the totality of data and documents of the
Currently, the international community commonly uses the land
location and legal procedures of those parcels, their valuation, land
cadastre definition approved by the UN jointly with the International
classification, quantitative and qualitative description, distribution
Federation of Surveyors (FIG) in the Bogor Declaration of the UN
among land owners and land users.
Interregional Meeting of Experts on the Cadastre (March 1996),
PROPOSITIONS OF THE BILLS
whereby “A Cadastre is normally a parcel based, and up-to-date land
information system containing a record of interests in land (e.g. rights,
STATE LAND CADASTRE
restrictions and responsibilities). It usually includes a geometric
• a single state system of land cadastral operations and a procedescription of land parcels linked to other records describing the
dure of recognition of the fact of emergence or termination of
nature of the interests, the ownership or control of those interests,
existence of land parcels as objects of ownership rights and the
and often the value of the parcel and its improvements. It may be
right of use containing the totality of data and documents on the
established for fiscal purposes (e.g. valuation and equitable taxation),
legal procedures of those parcels, their value, quantitative and
legal purposes (conveyancing), to assist in the management
qualitative description, distribution among land owners and land
of land and land use (e.g. for planning and other administrative
users, including tenants, by land category (1999 Bill);
purposes), and enables sustainable development and environmental
• a single state system of data and documents containing data of
protection.”2
land parcels and other immovable property, property rights to
them and their limitations, on subjects of those rights and docuThis definition, in a more elaborate form, was first formulated in
ments of title, as well as data of land valuation, quantitative and
the FIG Statement “On the Cadastre”. In particular, the Statement said
qualitative description, distribution among land owners and land
that “the Cadastre provides…:
users (2006 Bill);
• information identifying those people who have interests in
• a single automated state system of data and documents conparcels of land;
taining data of land parcels and other immovable property
• information about those interests (e.g. nature and duration of
located on those land parcels, property rights to them and their
rights, restrictions, and responsibilities);
limitations, on subjects of those rights and title documents, as
well as data of pecuniary valuation of lands, their quantitative
• information about the parcels (e.g. their location, size,
and qualitative description, distribution among land owners and
improvements, value).
land users (2007 Bill);
The Cadastre is… managed by one or more government
agencies. The Cadastre helps to avoid duplication and assists in the
land parcels, their legal procedures, as well as data of quantitaefficient exchange of information.
tive and qualitative description of lands and their valuation, of
Registration of land means officially recognised recording of
land distribution among owners and users, including land parcel
rights to immovable property and, as a rule, is an element of the
tenants (2008 Bill);
cadastre system.
land parcels, their legal procedures, as well as data of quantitaCadastre is a state land information system and should be
tive and qualitative description of lands and their valuation, of
managed by the government. Joint bodies may be established, to
land distribution among owners and users, including land parcel
which, those duties are delegated.
tenants, and land cadastral operations (2009 Bill);
Cadastral information should be accessible for the broad public
• a single state system of data and documents containing data
and at the same time have reliable personal data protection.”3
of those land parcels, their legal procedures, as well as data of
quantitative and qualitative description of lands and their valu1
Noteworthy, the Law “On State Land Cadastre” envisaged amendment of
ation, of land distribution among owners and users, including
Article 193 to define the State Land Cadastre in the wording proposed by Bill
land parcel tenants (2010 Bill);
No.8077, prepared for the second reading. See: Law “On State Land Cadastre”,
• an information system of data of land and land parcels lying
Section VII. Final and Transitional Provisions, Item 5, Para 2), Article 126, Item 8).
within Ukraine’s borders, their target purpose, kinds of functional
2
The Bogor Declaration of the United Nations Interregional Meeting
use, limitations in land parcel use, as well as data of quantitative
of Experts on the Cadastre, 2.7. Bogor, Indonesia, 18-22 March, 1996. –
and qualitative description of lands, their valuation, land
http://www.channelingreality.com/China/Bogor_Declaration.pdf.
distribution among owners and users (2011 Bill, reg. No.8077 of
3
4 February 2011; prepared for the first reading);
International Federation of Surveyors, FIG Bureau, PO Box 2, Belconnen ACT
2616, 1995. – http://www.fig.net/commission7/reports/cadastre/statement_on_
• a single state geo-information system of data of land lying within
cadastre.html (reverse translation).
Ukraine’s state borders, their target purpose, limitations in their
LAND CODE OF UKRAINE (2001), ARTICLE 1931
8
Methodological recommendations of definition of immovable property located on land parcels, the title to which is subject to state registration. Approved by
the Ministry of Justice Order No.660/5 of April 14, 2009.
9
E.g., it is proposed to change the name of the Law “On State Registration of Property rights…”, since the Law regiments the right to lease, being not
proprietary but obligatory. See: Busuyok D. Legal aspects of state registration of rights to land and their encumbrance. – Koretsky Institute of State and Law of
the National Academy of Sciences of Ukraine, http://www.nbuv.gov.ua/portal/soc_gum/nvnau_pravo/2010_156/10bdv.pdf. See also: Potapenko V. Land Code
needs change. – Yurydychnyi Zhurnal, 2003, No.5, http://www.justinian.com.ua (in Ukrainian).
10
See: “Volodymyr Kulinich, Deputy Head of the State Committee of Ukraine for Land Resources, on the state of affairs in land relations and land auctions”. –
Radio Era, May 28, 2009, http://www.radioera.com.ua (in Ukrainian). Emphasis added – Ed.
6
(4) the effective laws (including Codes), as a
rule, lack regulative completeness, i.e., contain too
many references: they either refer to an abstract “law”
to regiment specific actions (including yet inexistent
“laws”), or expressly require adoption of a few other
laws that should supplement or elaborate the applicable
one, or refer fundamental issues and procedures to the
competence of executive bodies.
REGULATION OF SLC AND REGISTRATION SYSTEM KEEPING PROCEDURES
(as of July 1, 2011)
• State Land Cadastre – the keeping procedure was approved by
•
As a result, first, currently effective procedures are
regulated by mainly provisional agency regulations –
while fundamental procedures of the cadastre and
registration system creation and keeping are to be
established exactly on the legislative level (Insert
“Regulation of SLC and registration system keeping
procedures”).
•
Say, even the recently adopted Law “On State Land
Cadastre” leaves to the Government such issues as the
cadastre keeping procedure and the procedure of access
to information (including for notaries, banks, other land
market actors), while the Land Code expressly provided
that “the procedure of the State Land Cadastre keeping
shall be established by the law” (Item 2, Article 204).11
•
Second, documents of title executed and issued under
procedures established not by a law but by departmental
documents and instructions have doubtful legal power.
For instance, the State Land Register kept by the State
Committee for Land Resources and not mentioned in
the Law “On State Registration of Ownership Rights
to Immovable Property and Its Encumbrances” may
be termed as an agency internal database, an extract
(abstract) from which may be neglected by a court in case
of a dispute about a land parcel.
Third, legislative reference of regimentation of
fundamental issues to the executive branch (the
Government) in fact enables “manual management”
of land and/or ownership relations and compromises
protection of ownership rights of individuals and legal
entities in Ukraine.
1.3. Improper organisational support for cadastral
and registration activity, on one hand, derives from the
incompleteness, inconsistency and controversy of the
applicable regulatory-legal framework, on the other –
seriously influences the process of its formation. For
•
•
•
•
•
CMU Resolution No.15 of January 12, 1993 (in the wording of
January 13, 2010);
State Land Register – the Temporary Procedures of the State Land
Register Keeping were approved by the State Committee for Land
Resources Order No.174 of July 2, 2003 (in the wording of June
27, 2007);
The Land Book and the Register of state deeds of the right
of ownership and permanent use of land parcels, land lease
agreements – the procedure of keeping was approved by CMU
Resolution No.1021 of September 9, 2009 (as amended by CMU
Resolution No.1404 of December 23, 2009);*
State registration of ownership rights to immovable property – the
Temporary Regulations of the procedure of registration of ownership
rights to immovable property was approved by the Ministry of
Justice Order No.7/5 of February 7, 2002 (as amended);**
Register of ownership rights to immovable property – the keeping
procedure was approved by the Ministry of Justice Order No.7/5 of
January 28, 2003 (as amended)**;
State register of mortgages – the Temporary Procedures of state
registration of mortgages were approved by CMU Resolution
No.410 of March 31, 2004;**
Single register of bans on alienation of immovable property – the
keeping procedure was approved by the Ministry of Justice Order
No.315 of June 9, 1999 (in the wording of Order No.85/5 of August
18, 2004);
State register of legal deeds – the Temporary Procedures of state
registration of legal deeds were approved by the CMU Resolution
No.671 of May 26, 2004; the Instructions of keeping the State
Register of legal deeds was approved by the Ministry of Justice
Order No.86/5 of August 18, 2004 (in the wording of January 8,
2007);
Assignment of cadastral numbers to land plots – the Temporary
Procedures of assignment of a cadastral number to a land plot were
approved by the CMU Resolution No.749 of August 18, 2010.
*
Also worth notice, the Land Book is deemed the main document for the ownership
rights registration system and is available for public access (with some limitations).
However, the Law “On State Land Cadastre” leaves determination of the Land Book
keeping procedure to CMU (Article 25, Item 6).
**
The Law “On state registration of ownership rights to immovable property and
their encumbrance” in the wording of February 11, 2011, provides that “The procedure
of keeping the State Register of Rights is specified by the Cabinet of Ministers
Ukraine” (Article 11, Item 3); “The list of documents for state registration of rights is
specified by the Cabinet of Ministers of Ukraine in accordance with the Procedure of
state registration of rights to immovable property and their encumbrances” (Article
15, Item 2); judging by provisions of Article 4 (“Rights and Encumbrances Subject
to State Registration”) and Article 11 (“Structure of the State Register of Rights”),
mortgage data will be an element of the single State Register of Rights. Meanwhile,
the final provisos of the Law provide that state registration of rights specified by
that Law will be introduced from January 1, 2012. This means that until then, the
mentioned departmental documents will be effective.
instance, first, introduction of a single state cadastre
registration system was opposed by local bodies of
state power (administrations) and local self-government
bodies that, under the effective legislation, manage lands
(respectively, beyond and within boundaries of populated
localities) and also have a strong lobby in Parliament. It
is deemed to stand behind Parliament’s rejection of the
first (governmental) bill of state registration of rights to
immovable property in 1999 that provided for creation
of the Agency for Registration of Rights to Immovable
Property subordinate to the Ministry of Justice.12
Second, several ministries and agencies fought for
powers at formation and keeping of the single cadastre
registration system (first of all – the Ministry of Justice
and the State Committee for Land Resources). Each of
those agencies, on one hand, prepared and pushed its
11
However, the Law “On State Land Cadastre” envisaged amendment of said Article of the Land Code and its formulation in the following wording: “The State
Land Cadastre is kept pursuant to the law”. See: Law “On State Land Cadastre”, Section VII. Final and Transitional Provisions, Item 5, Para 2), Article 204.
12
Due to the Bill rejection, Presidential Decree No.666 of June 16, 1999, bearing the same name did not enter into effect either. It also dealt with said Agency,
although the Decree “On Sale of Non-Farming Land Parcels” No.32 of January 19, 1999, vested the right to register ownership rights to the State Committee
for Land Resources (for instance, Item 11 of the Decree spoke about issue and registration of state deeds of land ownership by local bodies in charge of land
resources on the basis of notarised agreements of purchase and sale of land parcels; it provided that “the ownership right to an acquired land parcel shall
arise after the receipt of a state deed”). It should be added that local self-government bodies already had powers of registration of title to immovable property,
pursuant to the 1997 Law “On Local Self-Government in Ukraine”.
RAZUMKOV CENTRE
7
own drafts of regulatory-legal acts and/or established
bylaws on whose basis different registers and databases
were created and kept, on the other – obstructed
execution of regulatory-legal (including legislative) acts
disadvantageous for it.13
At that, inter-agency disputes were accompanied
with actually permanent changes in the status and
subordination of the State Committee for Land Resources
itself and the state bodies engaged in cadastral activity
(e.g., the Main Department for Geodesy, Cartography and
Cadastre).
Third, the instability and inadequate organisational
(as well as regulatory-legal) support for land relations
in general and cadastral and registration activity in
particular caused by excessive politicisation of economic
and business aspects of state governance, introduction
of continuous and uncompromising struggle of political
forces for voters (in fact, for power and access to
state resources) to the domain of state administrative
governance.
1.4. The above factors conditioned inconsistencies
and changes in the conceptual vision of the cadastre
registration system nature by the authorities in terms
of unitary (single, united) / dual (two-component,
whereby cadastral functions and functions of
registration of ownership rights are divided between
two or more agencies).
For instance, it may be said that in late 1990s – early
2000s, the authorities followed the strategy of creation
of a two-component cadastre registration system,
as witnessed, in particular, by the almost simultaneous
adoption of the Programme of creation of an automated
system of state land cadastre keeping vesting the relevant
functions in the State Committee for Land Resources
(and the specialised state enterprise “State Land Cadastre
Centre” established under its auspices) and issue of the
CMU Resolution “On measures at creation of a system
of registration of rights to immovable and movable
property” (1998) vesting the functions of state registration
of ownership rights in the Ministry of Justice.14
However, as soon as at the beginning of 2003,
the direction changed – the President’s Decree “On
Measures at Creation of a Single System of State
Registration of Land Parcels, Immovable Property and
Rights to Them in the State Land Cadastre” No.134
of February 17, 2003, was issued (in fact, due to that
Decree and the CMU Resolution issued in its pursuance,
the World Bank agreed to credit the Rural Land Titling
& Cadastre Development Project.)15 A single cadastre
registration system was also envisaged by the Law “On
State Registration of Ownership Rights to Immovable
Property and Its Limitations” (2004) and the Verkhovna
Rada Resolution on recommendations of parliamentary
hearings (2005).16
The next, third change of the direction was started
in 2006 – in particular, with the CMU Resolution assigning
powers of state registration of rights to immovable
property (including land) from the State Committee for
Land Resources to the Ministry of Justice17 – and in fact
finished in 2010-2011 with the adoption: in February,
2010 – of the Law “On Introduction of Amendments to
the Law of Ukraine “On State Registration of Ownership
Rights to Immovable Property and Their Limitations”
and other Legislative Acts of Ukraine” that, in particular,
vested the powers of registration of ownership rights to
the Ministry of Justice; in July, 2011 – of the Law “On
State Land Cadastre” that left to the State Agency for Land
Resources the functions of SLC creation and keeping, as
well as “performance of state registration of land parcels,
limitations in their use and keeping Land Books and issue
of extracts from the State Land Cadastre on land parcel”
(Article 6, Item 3). Both Laws are to fully enter into effect
from January 1, 2012.
1.5. Due to the above developments, Ukraine now
has neither single system of institutions forming the
databank of immovable property (including land
parcels), nor single system of institutions that register
title to immovable property. The present cadastre
registration network in Ukraine is fragmentary in one
or another way, different aspects of the current registration
activity involve local councils and their executive
committees, bodies of the State Committee for Land
Resources (e.g., the State Land Register administrator –
state enterprise “SLC Centre”), regional, intercity, city
and district bureaus of technical inventory (BTI), offices
and regional branches of the State Property Fund, bodies
of the Ministry of Justice (in particular, the registers’
administrator – state enterprise “Information Centre of the
Ministry of Justice of Ukraine” and state notary offices),
and private notaries.18 On one hand, those structures
duplicate each other’s functions, on the other, they use
different methods and procedures, which effectively bars
combination of different data in a single database.
So, now, there are several registers in Ukraine,
mainly closed, recording data of immovable property
(including land parcels), ownership rights and
their encumbrances (Table “Registers of immovable
property…”).
As we mentioned above, the legal status of those registers and the procedures of their keeping are not legislatively regimented, which lets them use different recording and/or registration methods, different requirements
13
E.g., when the Law “On State Registration of Ownership Rights to Immovable Property and Their Limitations” was passed (2004), providing for creation of a
single cadastre registration system to be kept by the State Committee for Land Resources, the Ministry of Justice simply did not follow the Law, keeping on its
own registers and not transferring databases to institutions of the State Committee for Land Resources. On the other hand, when the CMU Directive providing for
the transfer of powers of registration of title to immovable property from the State Committee for Land Resources to the Ministry of Justice was issued (No.295
of May 26, 2006), the State Committee for Land Resources did not follow that Directive either.
14
The Programme was approved by CMU Resolution No.1355 of December 2, 1997; The Programme was intended for 1998-2005 (and not implemented); the
second mentioned Resolution is No.192 of February 18, 1998.
15
Presidential Decree No.134 of February 17, 2003, and CMU Resolution: “On Measures at Creation of a Single System of Registration of Land Parcels,
Immovable Property and Rights to Them within the State Land Cadastre” No.689 of May 15, 2003; “On Creation of a Single System of Registration of Land
Parcels, Immovable Property and Rights to Them within the State Land Cadastre” No.1088 of July 17, 2003.
16 Verkhovna Rada Resolution No.2897 of September 22, 2005. Parliamentary hearings “Present state and prospects of development of land relations in
Ukraine” were held on September 13, 2005.
17
CMU Directive “On Transfer of the Integral Property Complex of the State Enterprise “State Land Cadastre Centre under the State Committee of Ukraine for
Land Resources” to the Area of Responsibility of the Ministry of Justice” No.295 of May 26, 2006.
18 E.g., pursuant to the Land Code (2001), the title to land, rights of land use and land lease agreements are registered by village, settlement, city councils;
pursuant to Para 2 of Article 227 of the Civil Code (2003), an agreement of purchase and sale of a residential building is subject to registration with the executive
committee of the local council; pursuant to the Law “On Local Self-Government in Ukraine” (1997), powers of registration of rights to immovable property are
vested in executive committees of local councils.
8
Official definition
Object of registration
RAZUMKOV CENTRE
Automated
Introduced in July 2003
by the State Committee
for Land Resources
Order No.174 of July
2, 2003
Register of Ownership
Rights to Immovable
Property
(Register of Rights)
… – a single computerised database providing The ownership right and other
property rights to the following
for indefinite storage of information about
immovable property:
ownership rights to immovable property,
1) residential buildings;
its issue and protection from unauthorised
2) apartments;
access.
3) buildings hosting premises
intended for accommodation of
… – a single state information system
humans, placement of movable
containing data of registered rights, subjects
of rights, immovable property and construction property, storage of material values,
production, etc.;
projects in progress, documents of title and
4) structures (engineering, hydraulic,
documents on whose basis state registration
of ownership rights to construction projects in etc.) of land improvement that do not
belong to buildings and apartments,
progress was performed.
Constituent elements of the Register of Rights designed for special technical
functions;
include an electronic database, registration
5) Premises of interior space of
files, logs of records of applications for
residential buildings, structures,
state registration of rights and records of
applications and requests for information from apartments, limited by structural
elements
the Register of Rights
(Temporary regulations, Item 1.5)
(Temporary Regulations, Item 1.8)
Land parcels and rights to their
…a single state information system for
ownership/use
provision of bodies of state power and
local self-government bodies, individuals,
Still not formed as a
enterprises, institutions and organisations with
“single state information reliable information about land
system”
(CMU Resolution No.1355
of December 2, 1997, II)
State Land Register (as
part of SLC)
The State Land Cadastre includes data of
registration of ownership rights, rights to land
Still operates mainly
use and land lease agreements, recording of
with paper documents
land size and quality, classification of soil,
zoning of populated locality territory, economic
and pecuniary valuation of land
(Regulations of Procedures of keeping..., Item
2)
Register name/
Date of institution
State Land Cadastre
(SLC)
Ministry of Justice/State Enterprise
“Information Centre of the Ministry of
Justice”/BTI
(Temporary regulations, Items 1.101.12)
Keeper/administrator/
registrars
State Committee for Land Resources/
SLC Centre State Enterprise/registration
offices of SLC Centre/ BTI
of July 17, 2003; in the wording of
August 15, 2009)
Non-public
Public character/accessibility
The right to get an extract from the Land Book
belongs to the land parcel owner (user), persons
holding the right to land easement, emphyteusis
and superficies, their heirs, assigns or authorised
Procedures of Land Book keeping; persons and lawyers.
Information certificates from the Land Book may
Procedures of keeping logs of
be issued to bodies of state power (officials), if a
state registration of state deeds
request is made in connection with the exercise of
of land parcel ownership and
powers vested in them pursuant to the law.
permanent use of land parcels,
Information certificates from the Land Book are
land lease agreements
issued to bodies of state power on a written
request executed in accordance with the procedure
of September 9, 2009)
established by the law, signed by the head of
that body or a person replacing him, specifying
Temporary Procedures of
assignment of a cadastral number legitimate grounds for such request and relevant
requisites of the case in connection with which the
to a land parcel
need of getting said reference arose.
A territorial body of the State Committee for Land
of August 18, 2010)
Resources within 10 days from registration of an
application (request) shall examine it and give
Procedures of Production and
Approval of Index Cadastral Maps to the applicant a written extract or information
certificate from the Land Book or refusal to provide
(Plans) and Cadastral Plans of
Land Parcels, requirements to their such data
(Procedures of Land Book Keeping, Items 3233,
execution
3738).
of December 8, 2010)
Non-public
Temporary Regulations of
Procedures of State Registration
Information from the Register of Rights is provided
of Ownership Rights and Other
in the form of an extract and an information
Property Rights to Immovable
certificate.
Property
The right to get an extract from the Register of
(Ministry of Justice Order No.7/5
Rights belongs to:
of February 7, 2002;
The owner (owners) of the property the rights to
in the wording of July 28, 2010)
which are subject to state registration, or his (their)
authorized representatives;
Procedures of Keeping the
the user (users) of rights to immovable property or
Register of Ownership Rights to
his (their) authorized representatives;
Immovable Property
heirs (legal successors, for legal entities) or their
authorized representatives.
of 28 January 2003;
in the wording of 12 October 2010) Information certificates from the Register of Rights
on the relevant BTI form may be obtained by courts,
local self-government bodies, bodies of internal
affairs, public prosecutor’s offices, bodies of the
state tax service, state executive officers, bodies
of the Security Service of Ukraine and other bodies
of state power (officials), if a request is made in
connection with the discharge of their powers
established by the law.
(Temporary Regulations, Item 7)
Specification of Register keeping
procedures
Regulations of Procedures of State
Land Cadastre keeping
of January 12, 1993; in the
wording of 13 January 2010)
Registers of immovable property (including land parcels), rights to immovable property and their encumbrances
(as of June 1, 2011)
9
10
Introduced in 2004
pursuant to the Civil
Code of Ukraine
(Article 220) and
CMU Resolution “On
Approval of Temporary
Procedures of Keeping
State Registration of
Legal Deeds” No.671 of
May 26, 2004
State Register of Legal
Deeds
Automated
...– a single computerised database that
contains information of legal deeds subject to
state registration, ensures its storage, issue
and protection from unauthorised access.
(Temporary Procedures, Item 2)
Legal deeds:
an agreement of purchase, sale or
exchange of a land parcel, integrated
property complex, residential
building (apartment) or other
immovable property;
an agreement of transfer of
immovable property against payment
of rent;
an agreement of indefinite
maintenance (care), whereby
immovable property is transferred to
the acquirer in ownership;
an agreement of hire of a building
or other capital structure (their
separate part) made for a term of not
less than a year;
an agreement of immovable property
management;
other legal deeds, state registration
of which is envisaged by the law.
Ministry of Justice/ State Enterprise
“Information Centre of the Ministry
of Justice”/ state notary offices,
private notaries that in pursuance of
agreements made with the Register
administrator perform state registration
of legal deeds, amendments made to
them, data of termination of their effect,
accept inquiries, issue certified extracts
from the Register and discharge other
functions envisaged by the Procedures.
“Information Centre of the Ministry
of Justice”/ state notary offices,
private notaries that in pursuance of
agreements made with the Register
administrator perform state registration
of mortgages, data of encumbrances
or amendment of conditions of
encumbrance of immovable property
with mortgage, assignment of rights
under a mortgage agreement, transfer,
nullification, issue of a duplicate of
a mortgage deed and issue of a new
mortgage deed on the basis of a notice
from the mortgagee or his authorised
representative of a court ruling, accept
inquiries, issue certified extracts from
the Register and discharge other
functions envisaged by the Procedures.
Data of encumbrances or
amendment of conditions of
encumbrance of immovable property
with mortgage, assignment of rights
under a mortgage agreement and
transfer, nullification, issue of a
duplicate of a mortgage deed and
issue of a new mortgage deed.
…– a single computerised database of
encumbrances or amendment of conditions
of encumbrance of immovable property
Introduced in April 2004 with mortgage, assignment of rights under a
mortgage agreement and transfer, nullification,
pursuant to the Law of
issue of a duplicate of a mortgage deed and
Ukraine
issue of a new mortgage deed
“On Mortgage” (2003)
and CMU Resolution “On (Temporary Procedures, Item 2)
Approval of Temporary
Procedures of Keeping
State Registration of
Mortgages” No.410 of
31.03.2004
State Register of
Mortgages
“Information Centre of the Ministry of
Justice”/ state notary offices, state
notary archives, private notaries that
made relevant agreements with the
Administrator and have full access
to the Register of Prohibitions via a
computer network,
State Enterprise “Information Centre of
the Ministry of Justice”.
Immovable property (real estate) –
land parcels and facilities located on
land parcels, including construction
projects in progress inseparably
connected with them that cannot be
removed without their depreciation
and change of their purpose
(Regulations, Item 1.2.)
… – an electronic database containing data of:
1.1.1. Encumbrances of immovable property:
imposed prohibitions of alienation and
detachments of immovable property;
removal of records of prohibitions of alienation
and detachments of immovable property.
1.1.2. Temporary reservations concerning
Introduced by the
immovable property:
Ministry of Justice Order temporary reservations concerning immovable
No.31/5 of 9 June 1999 property made in the Register of Prohibitions;
removal of records of temporary reservations.
1.1.3. Issued extracts from the Register of
Automated
Prohibitions.
(Regulations, Item 1.1.)
Single Register
of Prohibitions of
Alienation of Immovable
Property
(Register of
Prohibitions)
Instructions of Keeping the State
Register of Legal Deeds
of August 18, 2004)
Temporary Procedures of Keeping
the State Register of Legal Deeds
of May 26, 2004)
Temporary Procedures of State
Registration of Mortgages
of March 31, 2004)
Instructions of the Procedure of
Filling In Applications and Keeping
the Single Register of Prohibitions
of Alienation of Immovable
Property
of August 18, 2004; in the wording
of July 3, 2009)
Regulations of the Single Register
of Alienation of Immovable
Property
of September 9, 1999; in the
wording of July 3, 2009)
Extracts from the Register may be issued in two
forms:
on a request from parties to a legal deed or their
authorised representatives;
on a written request from a court, public
prosecutor’s offices, bodies of internal affairs, the
state tax service and other bodies of state power
in connection with the discharge of their powers
established by the law, specifying the numbers of
the file with respect to which, information is needed.
(Instructions, Item 5.1)
Non-public
Any individual or legal entity may get an extract.
For that, an inquiry is filed about the presence or
absence of a Register record of encumbrances
or amendment of conditions of encumbrance of
immovable property with mortgage, assignment of
rights under a mortgage agreement, transfer, issue
of a duplicate of a mortgage deed and issue of a
new mortgage deed, issue of an extract of state
registration of encumbrance of immovable property
with mortgage.
Public
Information from the Register of Prohibitions is
provided in the form of extracts on requests of any
individuals and legal entities made on paper on in
an electronic format.
(Regulations, Item 1.)
Public
Registers of immovable property (including land parcels), rights to immovable property and their encumbrances
(as of June 1, 2011) Continued
to the quantity and completeness of documents necessary for registration, etc.
Such situation (duplication of functions, use of
different recording and registration methods, existence of
registers of different levels, their non-public nature and
inaccessibility, etc.) inevitably leads to different collisions.
For instance, land may be registered in the name of one
owner, immovable property on it – of another one; as a
rule, so-called “unrequested” or “abandoned” land shares
are not registered, great many buildings and structures are
registered for phantoms or not registered at all; state and
municipal lands are not subject to registration (moreover
that they are still not delimited).
Limited access to the main databases of those
institutions, on one hand, enables their officials to
get administrative rent (corruption), on the other –
facilitates the employment of those institutions for
influence (pressure) on certain persons (groups of
persons), including political (political corruption).
1.6. What is also worth notice is that the adoption
of the basic laws designed to regiment the progress of
the land reform, regulate land and property relations
and market circulation of farming land, in other
words – to ensure transparency and publicity of land
relations and protection of ownership rights, has
been delayed for years. As one may see from Table
“Regulatory-legal framework of land relations and
cadastre registration systems in Ukraine”,19 say, bills on
state registration of rights to immovable property have
been submitted to Parliament since 1998, on the State
Land Cadastre – since 1999. However, the Law “On State
Registration of Ownership Rights to Immovable Property
and Their Limitations” was adopted only in 2004, and on
SLC, as we mentioned, passed by Parliament only in July,
2011. In fact, the first Law on SLC was endorsed by the
Verkhovna Rada on March 20, 2007, but vetoed down by
the President. It took Parliament over two years to finalise
the Law with account of the President’s proposals.20 At
the beginning of 2011, the Verkhovna Rada rejected the
bill on land market considered by it for three years.21
Parliament may start consideration of a new bill only at
the next, ninth session (i.e., in the fall of 2011.)22
Protraction of the development and adoption
of fundamental legislative acts on the single
cadastre registration system, the practice of nonimplementation of the above-mentioned Law “On
State Registration of Ownership Rights to Immovable
Property and Their Limitations”, continuous interagency struggle for powers at formation and keeping
of actually non-public databases and registers had,
among other things, two effects.
First, the World Bank in 2006-2009 had to
reconsider the number of elements and, respectively,
the volume of credit funds extended for implementation
of a project whose main tasks included creation of a single
cadastre registration system in Ukraine (Insert “Rural
Land Titling & Cadastre Development Project,23 p.12).
This brought Ukraine neither respect of international
financial institutions nor attractiveness in the eyes of
investors, since it brought to light Ukraine’s practice of
neglect not only of the national legislation but also of its
international obligations.
Second, this gave grounds to assume that, on one
hand, the bodies of power and/or political forces
exercising it (and business groups behind those forces)
were not interested in creation of conditions for
transparent land relations and relations of immovable
property ownership, including land parcels.24
On the other hand, agencies struggle not only for
budget funds allocated to cadastre registration system
formation/keeping and the ability to get administrative
rent but also for possession of proprietary information
that to a large extent gives, first, control over
distribution of land – a resource not ultimately divided
among the interested financial-political groups yet;
second, opportunities to exert pressure on political
opponents.25
19
For the Table, see Annex to this journal, and Razumkov Centre website – http://www.razumkov.org.ua.
From June 27, 2007, when the Verkhovna Rada Resolution of the Law finalisation was passed, till November 17, 2009, when the finalised Law was
considered at a plenary sitting of the Verkhovna Rada but the Presidential veto was not overruled.
21
The Bill “On Land Market” (reg. No.2143-1 of April 3, 2008). Authors: Sulkovskyi, Bevzenko, Sihal, Tereshchuk, Tkach. The bill was basically approved yet
on June 20, 2008, but on March 17, 2011, it was rejected and removed from the agenda. For reference: in addition to it, in 2008, the Verkhovna Rada registered
two more bills on the land market: governmental (reg. No.2143 of February 28) and submitted by MP Ivan Zayets (reg. No.2143-2 of April 21). Both bills were
rejected by the Verkhovna Rada Committee for Agricultural Policy and Land Relations on June 17, 2008. In 2010, the Verkhovna Rada registered a bill drafted
by the State Committee for Land Resources (reg. No.1-1/3069 of December 22).
22
According to the Verkhovna Rada Procedures, in case of a bill rejection (as the case was with above-mentioned Bill No.2143), a similar bill may be
considered only at the next session. Currently, two bills on land market are under discussion: governmental, and drafted by an MP from the NUNS faction Ivan
Zayets.
23
Sources: Martyn A. Problems of the State Land Cadastre in Ukraine. – Land Union of Ukraine, http://www.zsu.org.ua/index.php?option=com_
content&view=article&id=95:-2&catid=62:2011-01-12-14-57-08&Itemid=87; Rural Land Titling & Cadastre Development Project. – World Bank website, http://
siteresources.worldbank.org; Rural Land Titling & Cadastre Development Project: 2004-2012: Objectives. On the project. Project in figures. What was made
and planned. – State Committee for Land Resources, IBRD, Kyiv, 2011; Land reform: a strategy, or movement on the touch. – Accounting Chamber website,
December 6, 2010, http://www.ac-rada.gov.ua (in Ukrainian).
24
In particular, commenting on the recent adoption of the Law on SLC, Ivan Zayets said: “The problem is that up till now, we have had no law on the state
land cadastre, because those who stole that land, who bypassed the law and acquired it illegally, were disinterested in it”. See: Ivan Zayets, National Deputy of
Ukraine, NUNS faction: “Land market is a long way ahead”. – Radio Era, July 11, 2011.
25
Those assumptions are also proven with the practice of hostile takeover of land, spread exactly from mid-2000s. See, e.g., materials of the website
http://zahvat.ua. The scale of that phenomenon let the President of the Association of Farmers and Private Land Owners of Ukraine Ivan Tomych state in 2009:
“Hostile takeovers of land and harvest are of a systemic character in Ukraine”. – Dilova Ukrayina, business news, March 16, 2009; http://project.ukrinform.ua (in
Ukrainian).
20
RAZUMKOV CENTRE
11
RURAL LAND TITLING & CADASTRE DEVELOPMENT PROJECT
The Project included seven components: A – Institutional
nearly 24% and 18% of household owners, respectively, are familiar
Development and Legal Reform, B – Public Awareness, C –
with them); three training seminars were held for representatives
Training, D – Land Surveys, E – Cadastre System Development,
of territorial structures of the State Committee for Land Resources
F – Farm Restructuring Services, G – Project Implementation.
responsible for public relations, three press tours were organised
for mass media; 75 information products on land subjects were
In 2005, the Bank several times notified the State Committee
developed and released for free use by national and regional media,
for Land Resources of unsatisfactory implementation of the
support is provided for the Project web page www.zemreforma.
Project, especially the components dealing with introduction
info; seven issues of a monthly information bulletin were published
of a single registration system and agricultural enterprise
(circulation – 150 500 copies); four round-tables were held; an allrestructuring. However, till November 30, 2005, no improvement
in introduction of a single registration system, agricultural
Ukrainian journalist contest “My land – my property” was arranged
enterprise restructuring, training and public awareness had been
to increase the number of educational and popular publications about
observed. So, on February 21, 2006, the Bank partially suspended
the right to private property, use of land parcels and duties vested in
the component funding to the amount of $75.7 million, and on
owners after the provision of said rights, etc.
July 24, 2006, withdrew $74 million. In a letter of May 4, 2006,
In 2010 and 2011, two comprehensive representative
the Bank noted minimal progress with implementation of the
sociological surveys for assessment of the land reform were held,
Law “On State Registration of Ownership Rights to Immovable
covering four groups of respondents: residents of rural areas who
Property and Their Limitations”.
acquired land parcels (shares); village/settlement heads/mayors;
Respectively, due to the lack of progress with implementation
managers of farms and agricultural enterprises. Following the
of component E – Cadastre System Development, the Project was
survey, a conference was held where an analytical report was
in a state of restructuring from 2006 till April 2009. Components
presented. The data were published on the Project website.
E and F were cancelled, component D – expanded (“Land surveys
and cadastre system development”).
According to the Project manager Serhiy Kubakh: “The need
of adjustment was primarily caused by non-implementation of
component E - “Cadastre System Development”. Such situation
arose because on the state level, there is no common view of the
mechanism of organisational, functional and legislative support
for introduction of a single state system of registration of rights
to land and immovable property. The fact that solution of that
issue was further protracted, barred the Project implementation,
in particular, creation of a single state automated system of the
state land cadastre keeping”.
So, currently, the Project is implemented with five
components. By now, the following has been made as part of
their implementation:
Component A – Institutional development and legal reform.
The goal of sub-component А.1 “Institutional development” has
been achieved, namely, the inventory of the State Committee
for Land Resources and its territorial bodies improved: it took
delivery of 11,483 units of furniture (desks, cabinets, chairs,
boxed, etc.) and office machinery (729 fax devices and 1,465
telephone sets), 5,227 hardware units (multifunctional devices,
copiers, computers, server units, workstations, monitors,
printers, scanners, notebooks, etc.).
Implementation of sub-component А.2 “Legal reform”
concentrated on the legislative framework development and other
issues dealing with perfection of land relations in pursuance of the
Land Code of Ukraine, as well as development of legal capabilities
and the database of the State Committee for Land Resources. The
following results were achieved:
• 10 regulatory-legal acts were drafted;
• legislation of the EU countries was selected for creation of
a legal library of the State Committee for Land Resources;
• international expert examination of regulatory-legal acts in
the field of registration of rights to immovable property and
land cadastre was held.
In two years, implementation of the sub-component was
suspended. Following a monitoring mission, a list of regulatorylegal acts was drawn up and coordinated with the World Bank and
the Ministry for Agricultural Policy.
Component В “Public Awareness”. People get information about
the land reform. On the national air, TV and radio programmes “My
land – my property” are broadcasted (weekly, 10 minutes each;
12
Component С “Training”. The national training base for
specialist training and retraining in the field of land planning and
cadastre was renewed, experts employed in territorial bodies of
land resources undergo professional development. The following
results were achieved:
• training aids were developed, over 700 state registrars were
trained;
• modern training programmes were developed for 20 leading
Ukrainian higher educational establishments that turn out
experts in the speciality “geodesy, cartography and land
planning”, 525 their lecturers underwent professional
development;
• professional development courses are arranged for experts
of state bodies in charge of land resources (total of 2,535
employees improved their skills);
• nine leading Ukrainian higher educational establishments that
turn out experts in the speciality “land planning and cadastre”
took delivery of specialised software, hardware and office
equipment (total, 585 units of equipment) and nine sets of
geodetic equipment (a photogrammetric station, a pathfinder,
a laser ruler for distance measurement, an electronic imprintfree tachymeter, a set of two-frequency GPS receivers, an
electronic tachymeter with an integrated satellite receiver);
• seven study guides were developed and are maintained in an
actual state for training modules “Legislation on the Issues of
Land Relations Regulation”, “Human Resources and Personnel
Management Issues”, “Public administration in the area of
land relations”, “Information Technologies in the System of
Land Resources Bodies”, “State Land Cadastre”, “Land Market
and Land Appraisal”, “Environmental Protection and Rational
Use of Land Resources”.
The main measure to be implemented before the Project
completion is to create a specialised training and methodological
centre for support, assistance and coordination of expert training
and retraining in the speciality “geodesy, cartography and land
planning”. By now, the concept of its creation has been drawn up,
to be reviewed by the Project management group.
Component D “Land surveys and cadastre system
development”. Under sub-component D.1, scope of land planning
works for free allotment of land shares in situ and issuance of
state deeds of land parcel ownership was completed; aerial
photography and production of basic and index cadastral maps
for the whole territory of Ukraine goes on. At present:
• aerial photography was performed in 20 regions and the
Autonomous Republic of Crimea on the area of 468.8
thousand km2 making 78% of the contracted scope of work;
• orthophotomaps were produced: to scale 1:10,000 – on the
area of 433 thousand km2 (72%); to scale 1:5,000 – on 45.7
thousand km2 (79%); to scale 1:2,000 – on 9.4 thousand km2
(47.2%);
• on the basis of produced orthophotoplans and
orthophotomaps, index cadastral maps were made on the
area of 344.9 thousand km2 (47.2%).
Currently, field control of the quality of land planning
and cartographic works is on in 20 regions of Ukraine, the
Autonomous Republic of Crimea and the city of Sevastopol. Field
control of land planning quality is over in Volyn, Transcarpathian,
Kyiv, Lviv, Cherkasy and Chernihiv regions, field control of the
cartographic work quality in those regions is nearing completion.
Field control of the quality of land planning started in Zhytomyr,
Rivne, Khmelnytskyi, Sumy, Poltava and Vinnytsya regions, and
field control of the quality of cartographic work – in Poltava
and Sumy regions. Preparatory work is on for performance of
a contract for field control of the quality of land planning and
cartographic works in Ivano-Frankivsk, Ternopil and Chernivtsi
regions.
Under sub-component D.2, an automated system for the
national state land cadastre keeping to scale is being created. At
present:
• equipment (a network data storage matrix and 800 sets of
computer and copying equipment) for the cadastre were
delivered to the SLC Centre and 725 sets – to 27 territorial
bodies State Agency for Land Resources (24 regions, the
Autonomous Republic of Crimea, the cities of Kyiv and
Sevastopol);
• server and networking equipment was delivered for the main
and all 27 regional centres for operation of the database of
the results of cartographic works;
• 10 engineers of the main centre and 54 engineers of regional
centres underwent training in operation and architecture of
the system of infrastructure of the database of the results of
cartographic works on the central and regional levels;
• a pilot version of the cadastre system was installed and
tested in the main centre and three districts of Vinnytsya
region (Haisyn, Tulchyn and Nemyriv);
• the Plan of introduction of the cadastre software system
submitted to the World Bank was approved;
• the module of import of data of the results of land planning
operations in the cadastre system and business analysis for
creation of the cadastre system was accepted;
RAZUMKOV CENTRE
• a contractor prepared and transferred to the State Agency for
Land Resources a conceptual plan for quality maintenance
and a conceptual plan of training under a contract for the
cadastre system creation;
• for proper operation of the cadastre system, tenders are
held to buy the required equipment (e.g., server, computer,
copying and telecommunications) and communication
channels, and services for creation of an integral information
protection system will be procured.
Progress of separate measures of the
Rural Land Titling & Cadastre Development Project
Initially
planned
Done as
of 1 July
2011
Plan as
of 1 July
2012
468.8
602.4
Land cadastre
Aerial photography, thousand km2
602.4
2
Creation of orthophotomaps,thousand km , including
1:10,000 (for the whole territory of
Ukraine)
602.4
433.0
602.4
1:5,000 (for villages)
45.7
57.9
1:2,000 (for settlements and cities with
the population up to 200 thousand)
9.4
19.6
Production of index cadastral map,
thousand km2
602.1
344.9
602.1
Creation of a developed national single
cadastre system regions covered
25**
25*
25**
Ownership rights
State deeds executed in exchange for
certificates, thousand
4 million***
510.1
To
complete
exchange
State deeds issued in exchange for
certificates, thousand
4 million***
441.9
To
complete
issuance
Logistic support for bodies of land resources
State Committee for Land Resources,
including its departments and territorial bodies, is better provided
with equipment for land resources
management
692
692
692
10
33
Regulatory-legal support
Development of regulatory-legal documents in the field of land relations,
number of drafts
25
Personnel training/retraining
Professional development of officers
of bodies in charge of land resources,
persons
2,850
2,535
2,850
Professional development of lecturers
of higher educational establishments,
persons
525
525
525
Provision of universities**** with specialised licensed software, hardware
and geodetic equipment for training
experts in the field of land planning
and cadastre, universities
9
9
9
* archives of land planning and cartographic work data are created, computers for
the cadastre system delivered.
** cadastre system software installed.
*** out of 4 million certificates, 3.28 million were replaced using other sources;15
thousand were replaced under pilot projects and 823.5 certificates – at different
stages within the Project framework.
**** Kyiv National University of Building and Architecture, Donetsk National
Technical University, National University “Lviv Polytechnics”, National University of
Water Facilities and Use of Nature, Kharkiv National Agrarian University named after
Dokuchayev, Lviv National Agrarian University, Odesa State Agrarian University,
National University of Bio Resources and Use of Nature of Ukraine and its southern
branch, Crimean Agronomical University.
13
1.7. The authorities’ choice in favour of a twocomponent (dual) cadastre registration system is
neither indisputable nor the best for Ukraine. The
present practice shows that different countries have
different systems and, generally speaking, there is
no big difference between unitary or dual cadastre
registration systems – if close interaction between
cadastral and registration institutions and their
electronic databases is provided, and “one stop” is
arranged for users to submit/obtain information.26
However:
1. Parallel existence of the cadastre and register
gives rise to many problems, the main of them being:
• almost inevitable duplication of some functions,
performance of information exchange procedures –
which leads, among other things, to an increase in the
value and time of servicing;
• formation and development of the two systems can
take place on different technical platforms, with
different speed, which, in case of poor standardisation,
complicates regulation of information flows among
them and undermines promptness of actualisation of
information in their databases (even if such exchange is
formalised and not done “on request”);
• restriction of opportunities to achieve self-repayment
of the cadastre system, since it cannot be directly
subsidised at the expense of payment for the registration
system services, and therefore, requires strong support
and/or high value of services for users;
• in the Ukrainian situation, those problems are further
aggravated by the poor executive discipline, coordination
and interaction of state agencies, their rivalry for control
of financial flows and administrative rent, which can
affect the value of services and duration of procedures
both for users and the budget (all taxpayers.)27
2. A unitary (integrated) cadastre registration
system is cheaper, more flexible and dynamic, and in
the end result, more convenient for users, since it:
• puts an end to duplication of functions and procedures
of inter-agency information exchange, which reduces the
cost of services and duration of procedures for users and
enhances the promptness of actualisation of information
in the database of a single system;
• enables subsidising of its loss-making portion (cadastre)
at the expense of the profitable one – the title registration
system, which facilitates achievement of the system selfrepayment at a later point;
• introduces the principles of “one stop” by definition, not
through institution and formalisation of inter-agency
information exchange procedures.
1.8. It may be argued that Ukraine’s declared EU
aspirations in general and the European practice of the
“cadastral” reform in particular would be best met by
introduction of a unitary (single) cadastre registration
system.28 It should be noted that it would also meet
EXPERT OPINIONS
The majority (67%) of experts polled by the Razumkov
Centre Sociological Service expressed confidence that
for Ukraine, more expedient is a unitary (single) cadastre
registration system where the SLC and the Register of
ownership rights to immovable property (including land parcels)
are united in a single database kept and managed by one state
institution. A two-component system is deemed more optimal
by only 28% of experts; nearly 2% reported that organisational
principles of the cadastre registration system were unimportant.
Almost 4% could not give a definite answer.
At that, among the adherents of the single system, a relative
majority (42%) suggests that it should be formed and kept by
the State Agency for Land Resources (the successor to the
State Committee for Land Resources); 20% opted for the State
Registration Service under the Ministry of Justice of Ukraine. A
third of experts is sure that it would make sense to establish a
special executive body (in that, 15% considers that such body
should be independent, like the State Property Fund.)*
*
The expert poll was conducted by the Razumkov Centre Sociological Service
on May 18-24, 2011, 111 experts were polled (representing land planning scientific
research and design institutes, regional departments of justice, the State Committee
for Land Resources, regional branches of the SLC Centre. For more detailed poll
results summed up in Tables and Diagrams see Annex 1 to this Report “What should
the cadastre registration system in Ukraine look like: expert poll”.
the perceptions and expectations of the majority of
domestic experts, including practicing ones.
However, the authorities took the heading towards
the creation of a two-component system, which does not
remove the risks of preservation of all the drawbacks of
the present one (including inter-agency rivalry for control
of financial flows and administrative rent, opportunities
for “manual management” of land resources, etc.) and
does not guarantee the enhancement of its efficiency, now
being very low.
2. FACTORS THAT HINDERED CREATION OF A
SINGLE CADASTRE REGISTRATION SYSTEM
IN UKRAINE AND IN THE END RESULT LED
TO ITS REJECTION
2.1. Currently, Ukraine has a multi-element
inefficient cadastral and registration systems not
meeting interests of users, including the state, since
it in fact cannot be used for proper management
of land resources, calculation and collection of the
economically reasonable payment for the land (land
lease) and/or immovable property tax. At that,
references of official sources to the current situation
are mainly incorrect.
2.2. Lack of funds – the most common argument of
the authorities to explain any problems in the country,
including the long absence of an adequate cadastre
registration system. However, first, it may be argued that
Ukraine had enough own funds to create a modern
single cadastre registration system in the years
26
I.e., the institution should be named for a person to apply to, and then, his or her request (e.g., application for registration of ownership rights) should be
processed by cadastral and registration institutions contacting each other under the established procedure.
27
Experts mention among the advantages of the two-component system that the presence of two parallel independent systems makes it possible “to introduce
kind of “competition” and mutual control”, and to diminish the conflict of interests. It is stressed that “this aspect is especially important for transitional
economies, where the risk of corruption is especially high”. See: Legal and institutional aspects of the farming land market in Ukraine…, p.11. However, it may
be said that in Ukraine, this advantage is offset by the fact that corruption has acquired a systemic character there. For more detail see: Political corruption in
Ukraine: actors, manifestations, problems of countering. Razumkov Centre analytical report. – National Security & Defence, 2009, No.7, p.266.
28
Noteworthy, the goal and essence of the “cadastral” reform lie in combination of multifunctional cadastral and registration systems in a single cadastre
registration or land information system – Cadastre 2014 (Insert “Cadastre registration system: reference”, p.45).
14
EFFICIENCY OF THE EXISTING CADASTRE AND REGISTRATION SYSTEMS: ACCESSIBILITY AND QUALITY OF SERVICES,
RELIABILITY AND PUBLIC CHARACTER OF DATA1
Cadastre registration systems’ efficiency is mainly conditioned by
PROJECT IN SUPPORT FOR LAND PRIVATISATION IN UKRAINE:
their accessibility and convenience of their services for the user,
PROBLEM ASPECTS CAUSED BY ACTIONS OF EMPLOYEES ON
reliability and public character of information in their databases.
THE UKRAINIAN SIDE
1. Accessibility of services of the cadastre and registration
Free issue of 1.8 million state deeds of land share ownership
systems in Ukraine is limited, complicated, and extremely
was one of the main elements of said Project, since the cost of
unsparing for users (in terms of both money and time). Specific
their execution was entirely covered by the US side. In 2003, the
of those systems are too many too long procedures and the wide
functions of state deed registration were assigned to the SLC
practice of extortion, unlawful collections from individuals and
Centre that imposed a registration fee (in fact, for getting state
deeds, including those supposed to be issued for free under the
legal entities, overstatement of the cost (rates) of works and
Project). In May, 2004, the State Committee for Land Resources
services.
was forced to issue an Order confirming free registration of state
(1) As noted above, land parcels and immovable property on them
deeds executed under the Project.
are registered separately and by different institutions – bodies
However, according to the Project officers, the SLC Centre
continued to collect registration fees from all villagers. Only
of the State Agency for Land Resources and BTI, respectively.
in March, 2006, a new Order of the State Committee for Land
This complicates both the procedure of registration of immovable
Resources settled the situation – fees for registration of state
property and conclusion of civil law agreements (purchase and
deeds executed within the Project framework were no longer
sale): their duration, the mechanism of certification of ownership
collected.
rights of the new owner and issue of title documents to him.
In addition, using its actually monopoly standing on the land
planning market, the SLC Centre set high prices of those works,
(2) The effective legislation sets no terms of all operations and
for which, villagers simply could not pay. So, the Project lawyers
procedures related with land parcel registration and receipt of
drafted the Bill “On Protection of Constitutional Rights of Citizens
state deeds of their ownership, so, individuals (or legal entities)
to Land” (adopted in January 2005) that imposed limitations on
cannot appeal in courts against protraction of such operations
the value of land planning operations for citizens who obtained
or procedures. Execution of documents for getting a state deed
land shares and introduced registration of state deeds for free, for
(land planning operations, allocation of parcels in situ, etc.) may
those persons.4
last for years, the process of issue of state deeds is “suspended”
indefinitely, for instance, because of “shortage of forms”.2
payment for those services over the legislatively provided
rates is witnessed by the results of a public opinion poll held
(3) Cadastre registration bodies widely practice
by Razumkov Centre. In particular, at the time of the poll (March
• Unlawful collection of money from individuals, overstatement
2011),
almost 39% of those who had their documents executed
of the cost of services (works), using their actually monopoly
(obtained them) in the State Committee for Land Resources’
status. Such practice of the SLC Centre was evident, for
bodies reported that they had to pay for that in excess of the
instance, in the process of implementation of the Project in
legislatively established value of services (in that, 6% – over UAH
support for land privatisation in Ukraine by the US Agency
1,000). 35% of citizens overpaid for registration of ownership
for International Development (USAID; 2001-2006) (insert
rights to immovable property in BTI (in that, 3% – over UAH
“Project in support for land privatisation…”).
1,000); in bodies of justice – 33% (in that, almost 2% – over
Overstated rates, collection of fees not envisaged by the law,
UAH 1,000).
violation of document execution terms, etc. are also typical for BTI
because of their monopoly standing in their jurisdictions;3
At that, almost 12% of those who had their documents for land
• actually barefaced solicitation of bribes for provision of services
parcels executed in bodies of the State Committee for Land
envisaged by the law. The methods of such solicitation include
Resources reported that this procedure lasted over a year; such
the above-mentioned protraction of execution or provision of
terms of ownership rights execution in BTI were reported by over
5
services, so that the user has to pay for their “acceleration”,
4% of those who passed that procedure, and almost 5% of those
and intentional creation of a deficit of document forms, e.g.,
who executed (obtained) the relevant documents in the bodies
state deeds of ownership, leading to “suspension” of their issue
of justice.7
for a long time and, accordingly, queues which prompts users
to look for alternative routes to get deeds.6
2. Due to the above-mentioned complexity, long time and high
value, the current practice of ownership rights’ registration does
The scale of the practice of delay at provision of cadastre
not suit not only individual citizens but also businessmen, farmers,
registration services by official institutions and demand of
1
See also the articles by Kubach “A system of cadastre, or a register of title? What we are building, and for whom” and Yurchenko “Results of the land relations
reform and prospects of the land market introduction in Ukraine” published in this journal.
2
Only in June, 2011, Parliament passed in the first reading the Bill limiting the term of execution of land planning documents to six months (Bill on Amendment of
Article 28 of the Law “On Land Planning” Reg. No. 8387 of April 14, 2011); in July, the Law “On Amendment of Some Legislative Acts of Ukraine Concerning Perfection
of the Procedure of Certification of the Right of Land Ownership” was passed, that, in particular, imposed responsibility for violation of the terms of issue of state deeds
of land ownership; violation of the set terms involves a fine from 340 to 850 UAH, and for officers who already had administrative punishment – from 850 to 3400.
3
In particular, concerned branches of the Antimonopoly Committee fined for abuse of monopoly standing (overstatement of rates and non-observance of execution
terms) “Rivne City BTI” Communal Enterprise; proceedings were instituted against Chortkiv Regional Communal Inter-District BTI (Ternopil region). See: “Rivne
BTI” “earned” by overstating rates. – March 29, 2011, http://www.ogo.ua; Chortkiv BTI set overstated cost of its services. – Ternopilska Pravda, May 25, 2011,
http://t-pravda.te.ua (in Ukrainian).
4
It should be added that within the Project framework, the Bills “On Procedure of Allotment in Situ (on Ground) of Land Parcels to Land Share Owners” and “On
Farmsteads” were drafted (both Bills were adopted in 2003). For more detail see: Project in support for land privatisation in Ukraine: Final report. – www.ulti.kiev.ua,
September 20, 2006, p.1-17 (in Ukrainian).
5
There were reports of numerous cases of solicitation of bribes by the State Committee for Land Resources’ officials “for acceleration of the process of coordination
of technical documentation”, “for assistance with obtaining state deeds of land parcel ownership”, “for assistance with execution and signing of a state deed of
ownership”, etc. See, e.g.: Public prosecutor’s office initiated a criminal case for solicitation of a bribe by a department head from the State Committee for Land
Resources in Lviv region. – March 9, 2009, http://vgolos.com.ua; SBU officers detained with a bribe an official of the State Committee for Land Resources in
Transcarpathian region. – September 3, 2010, http://zsp.org.ua; In Kyiv region, an official of the State Committee for Land Resources was caught red-handed with a
bribe of $19,500. – June 10, 2011, http://novynar.com.ua (in Ukrainian).
6
The current head of the State Agency for Land Resources Serhiy Tymchenko officially reported that currently, “there are 20 million forms available”. As regards
queues for land deeds, according to his words, they are “intentionally formed by officers of the State Committee for Land Resources” (in the process of liquidation).
See: Tymchenko: Authorised fund of the Land Bank may total UAH 5 billion. – RBC News, July 6, 2011, http://www.rbc.ua (in Ukrainian).
7
For the detailed summary results of the survey see the article “Public opinion about the land market and cadastre registration system as its element” published in
this journal.
RAZUMKOV CENTRE
15
investors using cadastral and registration services. This is
witnessed, first, by the relevant public opinion polls. For instance,
according to the survey “Assessment of land reform in Ukraine in
2010”, at the time of the poll (May, 2011), 58% of farmers and
66% of agricultural enterprise managers reported that they were
not satisfied with the present system of registration of ownership
rights. In that, 36% of farmers and 38% of agricultural enterprise
managers suggested that registration of title to land and property
should be concentrated in one institution, 22% of farmers and
28% of enterprise managers spoke out in favour of creation of a
new registration system.8
Second, assessments of international experts summed up in the
relevant indices and ratings. For instance, in the Doing Business
international index (that, in particular, includes the component
“Registering property”) released in 2011, Ukraine ranked 145th out
of 183 countries of the world (between Syria – 144th, and Gambia –
146th). This is the worst position among all European countries. By
“Registering property”, Ukraine ranked 164th (retreating, compared
to 2010, by 23 lines). At that, the number of procedures necessary
for registration stayed the same as last year – 10, but their duration
increased from 93 to 117 days, and cost – from 2.6%, to 4.1% of
the registered property value (Table “Country ratings in the Doing
Business index”9).
For comparison: the smallest number of property registration
procedures was one (e.g., Georgia, Norway, Portugal, Sweden),
the largest – 14 (Brazil); the shortest period was 1 day (Portugal),
2 days (e.g., Georgia, New Zealand, Thailand), the longest – 513
days (Kiribati); the lowest value – 0% (Bhutan, Saudi Arabia),
Georgia – 0.1%, Russia – 0.14%; the highest – 27.9% (Syria).
3. Reliability of the cadastral data may be reasonably questioned,
in particular, due to the improper quality of the land cadastre
operations. For instance, the above-mentioned World Bank Project
performs independent control of the quality of land planning and
topographic-cartographic operations. Selective control in a few
regions showed that “the quality of such works leaves space for
improvement”.10 In particular, mass media reported the following
facts: in 2009, during then current campaign of “completion of
issue of state deeds before the year end”, in the Crimea, 9,142
technical documentation sets were produced but only 540 state
deeds were registered, due to bad mistakes in other documents;
in Kirovohrad region, almost 1,700 document sets were rejected.11
According to statistical data, nearly 45% of technical
documentation sets and exchangeable files prepared by land
planning institutions is sent back for rework. And this does not
mean that the data accepted by the SLC Centre are correct – not
only because verification of the land cadastre data is formal but
also due to great many other problems (use of different systems
of spatial coordinates, unregulated procedural aspects of land
cadastral works, absence of independent control of the SLC
Centre’s activity, etc.)12
4. Reliability of the data entered into the Register of ownership
rights to immovable property is also doubtful, since, first, there
is a wide practice of registration of ownership rights (if any) in
the name of phantoms – individuals or legal entities.13 Second, the
Register of Ownership Rights is non-public and uncontrolled.14
5. Bribery in cadastre registration bodies discussed above combined
with the non-public nature of the Cadastre and the Register of
Ownership of Rights deprives the cadastral and registration systems
in Ukraine of the main element of their efficiency – trust of both
citizens and investors. Except maybe investors from Cyprus who
do not need public registers. That is why the authorities legalise the
non-public character of the cadastre registration system, referring to
the constitutional principle of inviolability of private life and making
no difference between private persons and persons exercising state
power in the name and at the expense of society, so, they should be
open to it and controlled by it.15
Country ratings in the Doing Business index
Overall rank
2011
2010
145
142
Georgia
Poland
Russia
12
70
123
Rank by registering
property
Registering property components
Number of
Time
Cost
procedures
(days)
(% of property value)
164
10
117
4.1
141
10
93
2.6
For comparison: 2011 rating
2
1
2
0.1
86
6
152
0.4
51
6
43
0.1
8
The comprehensive sociological survey was conducted by the Institute of Sociology of the National Academy of Sciences of Ukraine to the order of the State
Committee for Land Resources in May, 2011, under the World Bank “Rural Land Titling & Cadastre Development” Project. It polled 1,600 land share owners, 1,200
farmers, 800 agricultural enterprise managers, arranged seven focus group discussions with village council heads in 11 regions of Ukraine and the Autonomous
Republic of Crimea. See: Land privatisation in Ukraine: results, effects, prospects: Results of the comprehensive sociological survey by the Centre of Social Expertise
of the Institute of Sociology of the National Academy of Sciences of Ukraine (presentation materials), Kyiv, June 2011 (emphasis added – Ed.) (in Ukrainian).
9
Source: Doing Business. – http://www.doingbusiness.org/. Every year, 183 countries were examined.
10
According to Serhiy Kubakh, an obligatory system of internal and external quality control should be introduced on the national scale. “Licensed organisations
should have their own system to control conduct of topographic and geodetic works, and state bodies – perform external control, because there are known cases where
one land parcel overlaps with another one and goes beyond the limits of a populated locality. With such quality of land planning works, we already have court disputes.
With introduction of the farming land market, this may bring unpredictable consequences”. See: Nahorna О. What kind of a cadastre are we “building”?... (in Ukrainian)
(emphasis added – Ed.).
11
See: Chopenko V. Landed land 2. – Dzerkalo Tyzhnya, May 29, 2010, http://zn.ua (in Ukrainian).
12
For more detail see: Martyn A. Problems of the State Land Cadastre in Ukraine. – “My Land” website, http://www.myland.org.ua/userfiles/file/AGMartyn_cadastre.
pdf (in Ukrainian).
13
See, e.g.: Typologies of legalisation (laundering) of proceeds of crime through the immovable property market: State Committee for Financial Monitoring of
Ukraine. Approved by the State Committee for Financial Monitoring Order No. 265 of December 19, 2008. – http://uazakon.com/documents/date_3w/pg_gnnowo.htm;
journalist investigations published in Ukrayinska Pravda Internet publication under the header “From the life of the state elite” (e.g.: Leshchenko S. From the life of the
state elite: Yanukovych’s Principality. – March 30, 2010, http://www.pravda.com.ua (in Ukrainian)).
14
“Information certificates from the State Register of Rights on a written request may be obtained by courts, local self-government bodies, bodies of internal
affairs, public prosecutor’s offices, bodies of the state tax service, bodies of the Security Service of Ukraine and other bodies of state power (officials), if a request is
made in connection with the discharge of their powers established by the law” – Law “On State Registration of Ownership Rights to Immovable Property and Their
Encumbrances”, Article 28, Item 3.
15
However, in a corrupt environment, neither the law nor official position can secure “inviolability of private life”. According to the former Minister of Economy Vasyl
Tsushko: “Great many corrupt deals are effected only because information of property rights is non-public. So what is the sense of such non-publicity, if it is no problem
to get for a small bribe the required information about anybody’s property via corrupt officers of land resources departments and BTI?”. See: Tsushko V. Operation
“Formalisation”. – Ukrayinska Pravda, March 22, 2010 (in Ukrainian) (emphasis added – Ed.).
16
of independence. However, funds (both budget and
obtained from the registration activity) that could be used
for that (а) drained offshore using corrupt schemes, like
the one used by the Information Centre of the Ministry
of Justice (Insert “Drain of funds from Ukraine by State
Registration Institutions”29); (b) were used inefficiently
and/or divided via “friendly” structures. For instance,
former Deputy Head of the State Committee for Land
Resources Serhiy Belchyk said: “In course of 10-15 years,
budget funds were used stupidly, inefficiently. Analysis
proves that many million worth of investments brought
no benefit and were scattered. Via state enterprises, huge
investments, including budget, went to subcontractor
companies associated with former officials of the State
Committee for Land Resources”.30
Second, as we noted above, in 2003, the World
Bank gave to Ukraine a sufficient credit, including
for creation of a single automated cadastre registration
system (E component – “Cadastre system development”).
However, solely through the fault of the Ukrainian
side, the World Bank Project was restructured, and
the Е component cancelled. It may only be added that
in 2004-2009, the State Committee for Land Resources
managed to use only 12.1% of the funds earmarked by the
Project.
Commenting in due time on official references to
the lack of funds for cadastre creation, on one hand, and
slow application of the Project funds, on the other, UNDP
expert Mykola Kobets said: “In my opinion, the so-called
“political dimension” played a key role here. After all,
the existence of a cadastre, its normal operation rule out
many machinations. That is why in some cases, it is more
convenient for many concerned persons that the cadastre
does not exist. Or that it is imperfect…”31
A similar opinion about the discussion of the bill on
SLC has recently been expressed by the NBU Board
Chairman Petro Poroshenko: “There are no discussions,
there are no difficulties whatsoever – for 10 years now,
the state has been getting assistance from all foreign funds
and creating nothing new. The thing is that today, there is
not enough political will to create the land cadastre… If
there is a land cadastre, and within seconds one can find
in an electronic system who owns a land parcel, how it
is cultivated, what harvest it gives, its market value, how
income was obtained and what the state got in the form
of taxes from that particular land parcel, this means one
thing: market transparency. Where transparency exists,
there is no corruption”.32
2.3. Lack of technical capabilities. According
to experts, advanced geo-information technologies
enable creation of efficient distributed automated
cadastre registration systems.33 There are many certified
companies (including domestic) active on the information
technologies market that can on a competitive basis build
a cadastre registration system of any complexity and
configuration. For that, only interest of business and the
authorities in such systems is needed. However, analysis
of the Ukrainian situation proves the absence of such
interest – not due to technical or technological difficulties
but due to the authorities’ and business’ reluctance to
have a public, transparent market of immovable property,
including land.34
For instance, ECOMM СО (Kyiv) CEO Seredinin
noted the low interest of state bodies in introduction of
DRAIN OF FUNDS FROM UKRAINE
BY STATE REGISTRATION INSTITUTIONS
In 2010, mass media published a memorandum by Vice
Prime Minister Serhiy Tihipko to Ukraine’s Prime Minister Mykola
Azarov “concerning regimentation of the issue of operation of state
enterprises and removal of mediators in discharge of administrative
functions”.
The Memorandum spoke, in particular, about the activity of
the Ministry of Justice Information Centre. It appeared that the
Information Centre held only three registers (out of 16), while the rest
belonged to two commercial structures, with which the Information
Centre made agreements (without a tender) of use of their software
and, respectively, paid fees (royalty) to them. According to the
Control and Audit Department, those fees totalled: in 2007 – UAH
85.1 million; in 2008 – UAH 90.7 million; over 5 months of 2009 (by
the time of the audit) – UAH 28.4 million. That is, for less than 2.5
years – UAH 205.2 million.
The Memorandum also read that, according to expert estimates,
software for one register costs UAH 11.5 million, and the Information
Centre’s automated system – UAH 1,624 million. So, “development
and acquisition of software of all United and State Registers in state
ownership cost four times cheaper than the expenses made in course
of a year by the Information Centre to the benefit of commercial
structures for software use alone”.
A journalist investigation also revealed that the commercial
structures with which the Ministry of Justice Information Centre made
the above-mentioned agreements were registered on Cyprus, where
the Information Centre transferred the fees.
A similar situation occurred with the State Judicial Administration
that keeps the Single State Register of Court Rulings. It appeared that
that register also did not belong to the state structure, the latter only
used services of one of the same companies as the Ministry of Justice
Information Centre. In 2007-2009, the State Judicial Administration
paid to that company via a mediator, state enterprise “Judicial
Information Systems” – UAH 54.5 million.
Therefore, those publicised facts alone prove that in course of
three years, state registration institutions connected with judicial
bodies drained from the country almost UAH 260 million, or $37.8
million* – half of the sum provided by the World Bank for creation of
the single cadastre registration system in Ukraine ($75.7 million; it
had to be abrogated due to inaction of the Ukrainian side).
Converted on the basis of: Official hryvnia exchange rate against foreign
currencies (period-average). – NBU website, http:/www.bank.gov.ua/.
*
29
Source: Shcherbyna S. Sinecure for the authorities: under Azarov, they present millions to “offshore” authors. – Ukrayinska Pravda, November 9, 2010 (in
Ukrainian).
30
Does corruption prevent creation of an electronic land cadastre in Ukraine? – After Radio Liberty materials, Verkhovenstvo Prava news agency,
http://verhovenstvo.com/12/1211/1536/
31 Mykola Kobets: The right to land is guaranteed. But it remains unknown, by whom and how. – February 17, 2009, http://news.kh.ua (in Russian),
32
Poroshenko: Cadastre is needed to be not deprived of land. – Kyiv Post, 5 April 2011, http://www.kyivpost.ua (reverse translation – Ed.).
33
In Ukraine, there are companies that can provide quality services in this sector – e.g., ILS (International Land Systems) Ukraine. That company, in particular,
performed a pilot project of creation of a cadastre registration system in Haisyn district, Vinnytsya region, under the World Bank project. For more detail see the
company website – http://uk.landsystem.com.
34
See, e.g.: Havrylenko D.Yu. Analysis of web-mapping technologies for cadastre data presentation on the Internet. – Scientific Bulletin of National Mining
University, 2011, No.2, p.75, http://www.nbuv.gov.ua. The author explains the absence of a system similar to EULIS in Ukraine, in particular, by “the authorities’
and business’ disinterest in the land market transparency…” (emphasis added – Ed.).
RAZUMKOV CENTRE
17
advanced technologies and argued: “That situation, in my
opinion, witnesses two things. First, a deep crisis in state
(and equivalent) administrative and economic bodies.
Second, the wide flourishing field of corruption that
cannot but appear in such situation. At that, such corrupt
environment, biologically protecting itself, is interested in
non-transparency of business processes and complexity
of procedures of taxpayer servicing. Inmates of such
environment certainly neglect information, including geoinformation technologies – as well as other informationanalytical systems intended to do away with chaos and
support full transparency of procedures (at least for
investors)”.35
fundamentally reshuffled both the central staff of the
State Committee for Land Resources and its main local
departments. As a result, only nine out of 27 regional
departments of land resources were led by experts.
Mass media directly associated such HR policy with
the possibility of getting administrative rent, saying
that it had led to the spread of corruption in bodies in
charge of land resources. In particular, according to the
Millenium Challenge programme, in 2009, corruption
in the process of getting licensing documents for
transactions with land almost doubled, compared to
2007, and the number of land disputes considered in
courts increased 2.5 times.39
2.4. Lack of experts. Ukraine indeed encounters
some problems with expert training for formation and
keeping of a modern single cadastre registration system.
However, those problems deal not with the number
of specialists (also trained under state orders)36 but
mainly with updating and adjustment of the substance
of training.37 Furthermore, one should keep in mind that
in 2004-2011, many experts underwent training and
retraining (professional development) under the World
Bank Project (that contained the relevant component
C – “Training”); what is especially important is that
professional development was arranged for lecturers, and
nine Ukrainian universities got special licensed software,
computer and geodetic equipment for expert training in
the field of land planning and cadastre.
Formulation of the HR policy in the bodies of
land resources was considered at a meeting of the
Commission for study and comprehensive solution of
issues of implementation of the state policy in the field of
rational use and protection of land (chaired by the NSDC
Secretary.)40 Having reviewed information of the State
Committee for Land Resources, the Commission came
to the conclusion of its unsatisfactory operation, in
particular, in the field of HR policy formulation – which,
in the Commission’s opinion, was the main reason,
in particular, for the “collapse of the SLC system”,
failed attempts of creation of the SLC AS and spread
of corruption in land relations (Insert “Commission for
rational use and protection of land”41).
The main HR problem is presented by politicisation
of land relations, and therefore – introduction of the
principle of “political expediency” to the domain of
selection and placement of executives in bodies of state
power. The domestic practical HR policy witnesses that
the change of a leader involves (to a smaller or lesser
extent) the change of an agency staff, sometimes – even
of the lowest levels. Exactly such practice has recently
been observed in the State Committee for Land Resources
and the SLC Centre: frequent changes of their heads,
appointment of leaders by “quotas” of political parties
or for political loyalty and/or personal devotion led to
impairment of professional qualities of the top officials,
and with that – to lower requirements to the quality of
work and skills of doers.38 Instead, corruption in the
agency went up.
First, officials of all ranks, national deputies,
representatives of local self-government bodies
permanently study the best foreign experience, spending
on that millions of hryvnias of budget funds and huge
funds of international organisations, foreign governments,
foundations, etc. However, referring to the unique
situation in Ukraine and absence of “two hundred years
of democracy”, they insistently do not introduce the “best
practices” of land relations, land recording and ownership
rights.
For instance, the ninth in a row head of the State
Committee for Land Resources (Oleh Kulinich,
December 2008 – September 2010) was appointed
under the quota of Lytvyn’s Bloc in connection with its
joining the majority coalition. Respectively, the head
2.5. Lack of state-building experience, in particular –
miscomprehension by some officials and lawmakers
of the importance of an efficient cadastre registration
system.
Second, as we noted above, the concept of a single
cadastre registration system had actually dominated till
2004.
Third, it is worth reminding that the Government
of Ukraine Programme “For the People” approved
by Parliament in January, 2005, announced fighting
corruption, with “creation of a single system of
35
Interview with Yevheniy Seredinin, ECOMM СО President, about the role of geo information systems for economy and society development, cadastre
systems, open code and many other things. – http://www.ht.com.ua/index.php?page=content&content_id=124 (in Russian). ECOMM СО for over 15 years offers
on the Ukrainian market software of the world leader in information systems (GIS) Esri Inc. (USA), performs geodetic and cartographic works, provides and
processes remote earth probing data, etc. For more detail see: company website – http://www.ecomm.kiev.ua/.
36
Every year, the state orders training of quite many specialists in “geodesy and land management” (in 2006-2008 – on the average, 700 persons; in 2011 –
499 persons).
37
See, e.g.: Martyn А., Dorosh Y., Flekei Z. Problems of content of higher education in the field of land planning. – Land Union of Ukraine website,
http://www.zsu.org.ua; Lozovyi Т.О., Tyshkovets V.V. On bachelor training in land planning and cadastre. – http://www.nbuv.gov.ua (in Ukrainian). The attention
is also paid to the fact that training of experts in the field of land cadastre (geodesists, land planners, mappers, etc.) does not envisage at least fundamentals
of legal knowledge about land ownership rights, and vice versa – future lawyers majoring in the land law do not get sufficient training in land cadastre issues.
38
See, e.g.: Skybchyk S. War on windmills, or war on land mafia? – September 17, 2009, http://h.ua/story/225202/; Does corruption prevent creation of an
electronic land cadastre in Ukraine? – After Radio Liberty materials, Verkhovenstvo Prava news agency, http://verhovenstvo.com/12/1211/1536/.
39
For more detail see: Chopenko V. Landed land. – Dzerkalo Tyzhnya, May 22, 2010; Chopenko V. Landed land 2. – Dzerkalo Tyzhnya, May 29, 2010,
http://zn.ua (in Ukrainian).
40
The Commission was dissolved by the President of Ukraine Decree No.484 of April 2, 2010.
41
Source: Commission for Rational Use and Protection of Land met under chairmanship of Ukraine’s NSDC Secretary. – December 22, 2009,
http://www.rainbow.gov.ua (in Ukrainian).
18
COMMISSION FOR RATIONAL USE AND PROTECTION OF LAND
(extract from NSDC press service report)
The Commission noted that in land relations, issues of social
protection of land owner and land user rights, protection of natural
resources, conservation of the natural environment were neglected,
due to target-minded ruination of the system of professional staff in
state bodies of land resources, facilitating uncontrolled land deals.
…
The system of the Land Planning Institute that until recently
was considered the lead scientific research and design institution
not only in Ukraine but in the whole post-Soviet space is being
destroyed…
Growing politicisation of personnel in charge of state regulation
of land relations, in particular, appointment of executives by party
quotas, affects public trust in the authorities, their ability to enforce
the procedure in land relations.
The Commission noted that the central executive body in
charge of issues land resources and its state enterprise “State
Land Cadastre Centre” acting on the principle of self-financing and
task to provide services of registration and formation of the land
cadastre had not introduced an automated system for keeping the
State Land Cadastre and a system for keeping the State Register of
Rights to Immovable Property and Their Limitations. The system of
the state cadastre that successfully operated in the Soviet times on
paper media and ensured clear and perfect accounting of all land
parcels without exception and their quality was actually destroyed.
Attempts of introducing an automated system of the state land
cadastre keeping neglecting the good practice gained before 1990
were doomed to failure with such land service personnel.
…The noted problems weaken the system of state regulation
and control in the field of land relations, facilitate spread of
corruption, bribery, slow down the pace of economic recovery…
registration of ownership rights to all kinds of
immovable property” being one of its measures.
On June 16, 2006, the Government approved the
Ministry of Justice’ draft Concept of countering
corruption in Ukraine “On the Road to Decency”.
The Concept’s ideology mainly rested on creation of
safeguards against corruption and mentioned among
the priority measures at creation of such “safeguards”
“creation of a single system of registration of
ownership rights to all types of immovable property”.
Hence, the authorities are well aware of the role
and importance of unified registers, in particular,
for countering corruption. Another thing is that the
Concept, just as many other similar documents, has not
been implemented. Neither was implemented the package
of anti-corruption laws whose entry info force was first
delayed, and then, it was decided to draw up another
package, still being developed.
2.6. In fact, the question about the factors
hindering creation of a single cadastre registration
system should be formulated as follows: “who benefits
from the delay?”42 In the conditions of merger of
business and the authorities, systemic corruption,
this is good both for the authorities and for business
associated with them.43
That is why the main reason for the protraction of
regulation of land relations, in particular, creation of a
single cadastre registration system and in the end result,
its rejection lies in total corruption in the country and
absence of the political will for its limitations, let alone
eradication.
This gives rise, first, to resistance of the authorities
and related business circles to creation of any public
and transparent accounting systems, including a single
cadastre registration system.44 In absence of complete,
reliable and public information, any data may be
questioned, and in such case it is easier to manipulate land
and immovable property, the tax on immovable property
cannot be imposed,45 one finds it easier to evade taxes,
perform hostile takeover, etc.46 This conclusion coincides
with the expert poll results. The same conclusion is also
prompted by expert opinions.
Second, room for unpunished neglect of laws and
other regulatory-legal acts in inter-agency struggle
for possession and management of secure data of
ownership, possibilities to determine the boundaries
(and hence, the size) of land parcels, registration/
non-registration of their true target purpose or status
(change of the purpose from farming, or status –
from protected) and other opportunities that can give
administrative rent.
Third, refusal from a more modern, optimal
and cheap for the state single automated cadastre
registration system and the heading to actual creation
EXPERT OPINIONS
Among the reasons for the delay of creation of a single cadastre
registration system in Ukraine, experts first of all mentioned “lack
of political will, reluctance of some persons in and around the
government to establish order in state land records and registration
of rights to land parcels and immovable property, since creation of a
single, transparent and open cadastre registration system will limit
opportunities for tax evasion (or minimisation), grey deals involving
immovable property, and vice versa – enable calculation of realistic
rates of land fees and introduction of the tax on immovable
property” (almost 50% of those polled).
The second were “inter-agency contradictions…” (almost
47%); third – “inconsistency of the state policy in this domain”
(almost 40%).
Only 21% of experts referred to the “lack of funds” as the
reason, 19% – “incomprehension of the importance of creation of
such system by state officials and politicians”, and only 13% – “lack
of experts”.
42
A.Tretyak views the situation similarly: “If it were not of benefit for someone, we might have a different situation, because when I analyse the Bill on the State
Land Cadastre, where nothing changed in those years by 80 per cent, I realise that its adoption is hindered only by political obstacles”. See: Land reform without
an end in sight… – Silski Vist, June 17, 2011 (in Ukrainian).
43
“Assets worth 50 to 150 billion dollars still stay beyond the legal market circulation, in that way reducing funding and investments for development of the
agricultural sector and rural areas of Ukraine. Only a few powerful business groups closely related with the authorities win from such state of affairs” (emphasis
added – Ed.). See: Legal and institutional aspects of the farming land market in Ukraine, p.2 (in Ukrainian).
44
For instance, the State Committee for Land Resources Head Ihor Lysenko admitted that the key reasons that hindered creation of the state cadastre system
included “first of all… absence of the legislative framework” and “opposition of certain groups interested in conservation of the “grey land market”. – Exclusive
interview of the State Committee for Land Resources Head. – August 13, 2010, “My Land” website, http://myland.org.ua (in Ukrainian).
45
Noteworthy, in comments on the situation, draft documents, etc., creation of SLC is rarely related with imposition of the tax on immovable property, although
the two have a direct connection.
46
According to the former Minister of Economy Vasyl Tsushko (when in office): “Apparently, formalisation of ownership rights and public information of those
rights bear a strong anticorruption effect. The existence of complete and reliable public registers and cadastres actually rules out carve-up. That is why persons
who acquired land, as well as “plants, newspapers, steamers”, [after a verse by Vladimir Mayakovsky – Ed.] on doubtful grounds are conscious and committed
opponents of the idea of open registers and cadastres. That is, in reality… it is quite easy to solve the problems, technically and legislatively – in presence of the
political will”. See: Tsushko V. Operation “Formalisation”. – Ukrayinska Pravda, March 22, 2010 (in Ukrainian).
RAZUMKOV CENTRE
19
of a two-component, complex system for separate
keeping of the land cadastre and registration of
ownership rights to immovable property. Such system,
judging by the quality of its legislative regimentation
(in particular, the number of reference norms in
the laws on state registration of ownership rights to
immovable property and their encumbrances and
on the state land cadastre and the powers left by
those laws to the discretion of the executive branch),
will utmost preserve the possibilities for “manual
management” of land and property relations.
3. UKRAINE’S READINESS FOR A FREE
MARKET OF FARMING LAND
3.1. Institutional principles of the land market (as
well as any market) are usually defined as “the totality
of well balanced entities (institutions) and adequate
and stable legal procedures”.47 As shown above, today,
Ukraine does not have those elements, although the
land reform was announced yet in 1990. In course
of 20 years the state not did not manage to provide
proper institutional support for the reform itself and
operation of a civilised, transparent market not only
in the land sector (or immovable property sector) but
also a civilised, transparent market as a whole.
3.2. One of the main elements of the market is
presented by the institute of ownership, and protection
of ownership rights is the main precondition for
market relations. In Ukraine, ownership rights
remain not properly protected. Despite the provision
of guarantees of land ownership rights, their exercise
and protection in Ukraine’s Constitution (Article 3, 14,
41) and in the Land Code (Article 1, Item 2),48 it remains
unclear, who secures those guarantees, and how. More
than that, the practice of forcible takeover of land and the
level of corruption in cadastre registration bodies and the
judicial system witness that today, an ordinary citizen and/
or legal entity not associated with the current authorities
actually cannot protect ownership rights.
3.3. The practice of enforcement and observance of
the national legislation in the field of ownership rights is
far from international standards. This is witnessed, inter
alia, by the results of the survey “Human Rights in Ukraine
2009-2010” performed by the Kharkiv Human Rights
Group (Insert “Human Rights in Ukraine 2009-2010…”).49
HUMAN RIGHTS IN UKRAINE 2009-2010. SUMMARY REPORT.
SECTION XIV. PROPERTY RIGHTS
(extract)
The right to peaceful possession of one’s own property is
…As in previous years it is needed to mention serious
defined in the Convention for the Protection of Human Rights
problems in state guarantees for proper property rights protection
and Fundamental Freedoms is of extreme importance creating
both for physical bodies and juridical persons, producing direct
backgrounds for authentic economic freedom of every person and is
influence on competitive strength of the entire nation. In particular,
also important for the development of the nation aiming at building a
international economic organizations define this serious problem
democratic state.*
in Ukraine every year. As an example it is possible to cite data of
Global Competitiveness Report… for 2010–2011 again providing
The right is of vital importance for the state protection of rights
Ukraine with the worst positions among 139 countries included
in a period, when every accession to power of a new political force
to the document. Thus Ukraine occupied 135th place in the rating
is accompanied with a redistribution of property... Under deficient
of protection of property rights, 134th place concerning courts
system of property rights registration and weak legal protection
independence and 138th in legislation effectiveness.
for property rights it results in legal ambiguity and uncertainty
…Non-enforcement of rulings by national courts in part of
concerning the state capability to ensure stable property rights.
property levy protecting the property remains one of the most
Consequently it may lead to social tension in the state and undermine
acute problems in providing the right for peaceful possession of
the system of state management.
one’s property. According to the Minister of Justice of Ukraine O.
Unfortunately again it is needed to stress that the condition of
Lavrynovych, for the years of independence there formed the arrears
respecting these rights in Ukraine remains on a low level... Also need
of Ukraine on court rulings implementation concerning human rights
mentioning problems caused by the absence of unique and effective
violations in the dimension of 130 billion of UAH and, as he says,
system of proprietary right registration in Ukraine. In fact today none
the arrears grow every day and will continue growing if there is no
of owners may be sure of stability of his rights.
mechanism for solution of the problem will be found.
The reliable system of property rights protection is not created
…[The European Court on Human Rights] came to conclusion
as well. Court rulings concerning property collection are not fulfilled
that facts of non-enforcement of national court rulings are not related
to separate cases or particular events of the case, but result to be
in many cases and the problem of long-lasting court rulings nonconsequence of defects in regulatory and administrative practice of
fulfillment and lacking the means of legal protection from its non
state power bodies concerning fulfillment of national court rulings
fulfillment is widely spread and complex. To date certain reforms in
they are responsible for. Respectively, the situation in the field is
legislation and administrative practice to solve the problem remain
defined by the Court as resulting from practice non-compliant with
not carried out.
regulations of the Convention on Human Rights Protection and
…in real estate an absurd situation is observed. In Ukraine
Fundamental Freedoms”.
multiple bodies are involved in real estate registration. Acts on land
property rights are issued by the Center of the State Land Register
* Note. The mentioned right is established by Protocol No.1 to said Convention
and formulated in its Article 1 “Protection of possessions” as follows:
(DZK), subject to the State Committee of Land Resources. And the
registration of property rights for houses and flats located on that
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
land is issued by Technical Inventory Bureaus (BTI), – municipal
interest and subject to the conditions provided for by law and by the general
enterprises subject to local powers. An important part of the
principles of international law. The preceding provisions shall not, however, in any
information is possessed also by the Ministry of Justice holding the
way impair the right of a State to enforce such laws as it deems necessary to control
register of real estate property rights (part of the BTI contribute to the
the use of property in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties”.
registry) and the mortgage register. Access to information regarding
to property owners is limited and the information itself may be
The Convention for the Protection of Human Rights and Fundamental Freedoms
and Protocol No.1 to it were ratified by the Law of Ukraine on July 17, 1997.
incomplete and non precise.
47
48
49
See, e.g.: Legal and institutional aspects of the farming land market in Ukraine…, p.3.
Property rights and relations in Ukraine are primarily regimented by the Civil and Business Codes.
Source: Human Rights in Ukraine 2009-2010. Summary report. – Information portal of the Kharkiv Human Rights Group, http://khpg.org (emphasis added – Ed.).
20
3.4. Another factor of poor protection of land
ownership rights is presented by the insufficient
efficiency of the effective cadastral and registration
systems that in no way guarantee absence of mistakes
and/or security of information stored in their
databases.
There were repeated cases where several state
deeds were issued for the same parcel to different
people. At a recent meeting of the Verkhovna Rada
Committee for Agricultural Policy and Land Relations
that reviewed the Bill on SLC, examples were cited where
for the same land parcel, sometimes up to eight state
deeds had been issued in the name of different persons.50
It was also reported that the same parcel might have
several cadastral numbers, and therefore, several times be
sold to different persons.51
Furthermore, information, databases, documentation
dealing with cadastre registration (both on paper
and electronic media) are actually not protected from
unauthorised access, theft and other loss, accidental or
malicious. Respectively, that information can be used for
any unlawful actions, including attempts to seize property of
bona fide users (Insert “Protection of databases of cadastral
and registration systems”).
In such conditions, it is difficult not only to protect the
title to a land parcel but also to identify who holds it.52
3.5. Given all the above circumstances, the state’s
responsibility for losses inflicted through an error in
cadastral or registration systems remains not specified.
For instance, there is still no fund for reimbursement of
losses (guarantee fund), although it was envisaged yet
PROTECTION OF DATABASES OF CADASTRAL AND REGISTRATION SYSTEMS
There are repeated instances of officials destroying or stealing
information about land parcels:
• leak of confidential information that belongs to the state, as well
• in 2007, the office of the Obukhiv district SLC branch (Kyiv
• violation of integrity (distortion, destruction, unauthorised
region) was robbed twice;1
• in January, 2008, 13.5 thousand files (including dealing with
land) were stolen from the Brovary District State Administration
archives;
• in August, 2008, Mr. Haydenko, a member of PereyaslavKhmelnytskyi City Council, said that “total criminality of land
relations goes on in Kyiv region. Hired thugs… continuously
steal archives of local administrations of Kyiv region in order
to bring chaos into land relations, to take land from legitimate
owners. A crisis situation arose, where manipulations with land
archives lead to mass hostile takeover of land parcels of ordinary
residents of Kyiv region”;2
• in 2010, a car was hijacked in Kyiv with all documents on land
privatisation in Kyiv in 2006-2010.
Not only archival documents are stolen but also forms of state deeds
of land parcel ownership – strictly accountable documents:
• in 2009, 500 forms of state deeds disappeared in Volyn region
and later reappeared in Kyiv region, 204 were already registered,
in that, over 100 – in Kyiv-Svyatoshyn district, considered to lead
land machinations in Kyiv region. According to media reports, a
deed form costs $500 on the grey market there3;
• the State Committee for Land Resources monitoring of use of
forms of state deeds of ownership of land parcels “with the
purpose of detection of facts of abuses in the process of their
circulation” revealed that “29 land planning organisations
of Kyiv region, as of November 2009, did not return, fully
or partially, to bodies of the State Committee for Land
Resources 7,808 sets of forms of state deeds out of 11,037
unlawfully obtained in April-August this year”;
• according to the former Deputy Head of the State Committee for
Land Resources Volodymyr Kulinich, “some offices of the land
cadastre have no means to promptly transmit and receive secure
information.”4
In experts’ opinion, the state of information protection in the SLC
Centre and in the whole system of the State Committee for Land
Resources gives rise to a number of risks and threats:
as personal information of the owners;
modification) of information stored in the SLC AS databases;
• violation of accessibility (possibility of timely and proper access
to resources);
• failures and unauthorised changes in the algorithm of information
processing in the SLC AS itself.5
Regarding data protection in automated registers of the Ministry
of Justice administered by its Information Centre, the testimony by
the former Minister of Justice Roman Zvarych deserves attention.
According to his words, when in the ministerial office, he was
trying to find out “how protected the system was from hacker
attacks and other outside interference”, and got an answer from the
State Committee of Special Communications “that that enterprise
[Information Centre]… had no proper licences to install secure
software systems!”. More than that, Mr. Zvarych said that when he
raised the question of audit of the Information Centre’s operation by
controlling bodies, he heard rumours that in such case, the director
would destroy all registers or take them with him”.6
1
In the first case, nearly 8,000 second copies of state deeds of land parcel
ownership were stolen; in the second – 49 registration logs (out of the total
of 100) that registered individual titles and land parcel lease agreements. The
robberies led to a long break in deed issuance. By the way, in the process
of diminution of the aftermath of the theft it appeared that the first and
second copies of state deeds (the second one was kept in the SLC service)
were absolutely identical, so that the person holding the second copy of a
deed might use it to sell the parcel. See: Ivanchuk L. The Obukhiv epic. Part
two. – Agent.ua news agency, http://agent.ua/review/articles/12889.html (in
Ukrainian).
2
See: Local council members of Kyiv region went on a hunger strike
by the door of Kyiv Region State Administration. – August 18, 2008, http://
prawda.org.ua (in Ukrainian).
3
For more detail see: Chopenko V. Landed land 2. – Dzerkalo Tyzhnya,
May 29, 2010, http://zn.ua (in Ukrainian).
4
See: Ivanchuk L. The Obukhiv epic...
5
Sokhnych S. The state and problems of creation of the automated
system for the state land cadastre keeping. – http://www.nbuv.gov.ua (in
Ukrainian).
6
Kovalenko І. Our secrets are in God-knows-whose hands. – Ekspres,
November 18, 2010, http://e2.expres.ua (in Ukrainian).
50
See: The Cadastre flower: better late then never. – http://www.agrobusiness.com.ua/component/content/article/358.html?ed=37 (in Ukrainian).
According to the Deputy General Director of SLC Centre Oleksandr Horobets: “It is difficult to say, how many such problem-hit parcels
there are in the country. Where land is expensive, such cases will occur. First, sometimes, village councils allocate the same parcel to several
persons acting by the principle “who comes first”. Second, there were cases where deeds were forged, different numbers were inscribed, the
same parcel was sold several times”. See: The State Committee for Land Resources fights with the Ministry of Justice for the land cadastre,
http://smallbusiness.net.ua/news/60derzhkomzemvoyuyezminyustomzazemelnijkadastr.html (in Ukrainian).
52
Commenting on such market situation, UNPD expert Mykola Kobets said: “If at least one of those components (cadastre or register of rights – Ed.) is absent,
this cannot be termed market. That is why it happens here that one parcel is sometimes claimed by 34 owners, and everyone has a deed. Nothing can be proven
in court. Land documents are lost in a fire, stolen, the database was erased by mistake. All this leads to colossal chaos”. See: Mykola Kobets: The right to land
is guaranteed. But it remains unknown, by whom and how. – February 17, 2009, http://news.kh.ua (in Russian).
51
RAZUMKOV CENTRE
21
by the Law “On State Registration of Ownership Rights
to Immovable Property and Their Limitations” (in the
wording of 2004). In 2005, the Bill “On Guarantee Fund
of the State Register of Rights to Immovable Property
and Their Limitations” (reg. No.8541) was submitted to
Parliament.53 The respective articles of the new wording
of the Law “On State Registration of Rights…” and the
Law “On State Land Cadastre” contain only reference
norms.54 No compensation is provided also if property
is taken from a bona fide acquirer (i.e., the one who
formalised his title), as allowed by Article 388 of the Civil
Code of Ukraine.
Ukraine’s assessments in the rating of economic freedom
Rank
Country
1. Hong Kong
2. Singapore
…
29. Georgia
…
68. Poland
…
143. Russia
…
163. Uzbekistan
164. Ukraine
Ukraine-2010
165. Chad
…
179. North Korea
3.6. In the context of the above drawbacks,
Ukraine’s rankings in the relevant international
ratings are showy. What strikes the eye in the data below
is the deterioration of the country’s ranking, compared
to 2010, as well as its lag behind comparable countries,
such as Poland and Georgia, and at the same time, actual
coincidence of indices with Russia.
(1) Protection of ownership rights by the International
Property Rights Index (IPRI).55 In 2011, Ukraine
ranked 117th out of 129 countries of the world in that
rating with 4 points out of 10 (the highest level of
protection). Paraguay and the Republic of Chad had
similar scores. In 2010, Ukraine scored 4.1 points; in
2009 – 4.3 points.
General
score
89.7
87.2
Protection
of rights
90.0
90.0
Freedom from
corruption
82.0
92.0
70.4
40.0
41.0
64.1
60.0
50.0
50.5
25.0
22.0
45.8
45.8
46.4
45.3
15.0
30.0
30.0
20.0
17.0
22.0
25.0
16.0
1.0
5.0
5.0
3.7. A transparent land market and proper
management of land resources by the state and
communities require reliable information not only
of ownership rights but also of the key attributes of
land parcels (from their administrative-territorial
affiliation to quality of land, especially farming).
However, in Ukraine, for the time being:
For comparison: the rating is topped by Sweden,
Finland (score – 8.5 points) and Singapore (8.3 points).
Poland ranked 43rd (6.2 points), Russia – 93rd (4.6 points).
(2) Property rights and freedom from corruption in
Ukraine by the Index of Economic Freedom. By that
Index, based on indicators that describe the institutional
environment quality, Ukraine in 2011 ranked 164th (in
2010 – 162nd, in both cases being the worst among all
European countries) (Table “Ukraine’s assessments in
the Index of Economic Freedom”).56
•
full land inventory was not conducted. In fact, the
inventory touched only the land beyond populated
localities (in populated localities, inventory was
made by 50%), but over the past 10 years the data
of that inventory were not updated, and it may be
assumed that by now, they have largely lost their
relevance;
•
there is no real land value; the latest standard
pecuniary valuation of land was conducted in 1993,
later, it was only adjusted (although the Law “On
Land Valuation” provides for its conduct not less
than once every 7 years), so, today, it cannot be
considered reliable, along with the inventory data;57
•
state and municipals lands are not delimited,
boundaries of populated localities and other
administrative-territorial units are not fully
delineated; on one hand, this causes numerous
disputes about the territorial possessions between
local self-government bodies of different levels, on
At that, property rights were assessed at 30 points
(out of 100), freedom from corruption – 22 (against 25
in 2010).
For comparison: the best index of ownership rights
protection is 90 points (Hong Kong, Singapore), the worst –
5 (North Korea). Poland scored 60 points, Georgia – 40,
Russia – 25. The best index of freedom from corruption is
92 points (Singapore), the worst – 5 (North Korea). Poland
scored 50 points, Georgia – 41, Russia – 22.
Ukraine’s assessments in IPRI
2011
2010
Total score
Legal and political
environment
Protection of physical
property
Protection of
intellectual property
4.0
4.1
3.5
3.7
4.4
4.8
4.2
3.9
53
In January, 2006, the Bill was transferred for “the Government’s conclusion” and has not been considered by Parliament.
Like: “Damaged caused by the state cadastral registrar to individuals or legal entities in discharge of his duties should be reimbursed at the expense of the
state in accordance with the procedure established by the law”.
55
Source: International Property Rights Index. 2011 Report. – http://www.internationalpropertyrightsindex.org/. The index is drawn up by the Property rights
Alliance, USA.
56
Source: 2011 Index of Economic Freedom. – http://www.heritage.org/index/.
57
Recently, pecuniary valuation was performed only for lands of populated localities. It was reported that the State Committee for Land Resources planned
to complete that work by the end of 2011, such works were to be conducted in 4,722 populated localities, and revaluation – in 13,734 populated localities. For
that, UAH 193.07 million were needed – while by November, 2011, only 53.7 million were allocated (or 27.8% of the need). With those funds it was planned to
perform initial valuation of lands of only 1,487 populated localities and repeated – of 2,867. See: With reference to Deputy Head of Department of Organisation
of Land Market and Valuation Activity of State Committee for Land Resources Serhiy Prokopenko. See: State Committee for Land Resources plans to complete
standard land valuation by 2012. – November 8, 2010, http://analitica.kiev.ua
54
22
the other – enables their uncontrolled disposal of
land parcels and, vice versa, hinders the creation of
the State Land Stock of Ukraine;
•
zoning of the country territory is unaccomplished, which enables the wide practice of change
of the target purpose of farming land, as well as
of lands of other special purposes – conservation,
recreational, protected, etc. areas. Forests are cut,
shore areas are developed, banks are unlawfully
and dangerously silted on a large scale, to expand
parcels. All this is done in fact with impunity.58
At that, experts believe that within “a year – year
and half, zoning projects may cover 15-20% of
the country territory, in that way terminating the
embezzlement of the most tasty parcels”.59
However, exactly those whom society gave the
powers to do that are not interested in stopping the
embezzlement. As noted above, they obstructed creation
of an efficient cadastre registration system, including
adoption of the Law on State Land Cadastre, for years.
For instance, the present Vice Prime Minister of Ukraine
Serhiy Tihipko, commenting on the failed voting for
the Bill on SLC in Parliament on November 17, 2009,
expressly named the reasons for that. “The absence of
the land cadastre lets officials and dishonest businessmen
easily profit by land machinations, and MPs serve their
interests, – he said. – Whole cottage settlements grow in
preserves and water protection areas. At that, both the
authorities and the opposition took part in embezzlement
of land. And when the President vetoed down the Law on
the cadastre, the ruling coalition waited for two years to
submit a new wording of the Bill, and the opposition did
not support the Bill during the final voting. The motives
of politicians are clear – land machinations feed too
many of them”.60
3.8. The farming land market efficiency greatly
depends on the support/non-support of its introduction
by society, first of all – citizens immediately dealing
with it: owners of land shares, farmers, agricultural
enterprise workers, etc. At present, such support
is rather low. At that, it may be assumed that it is
conditioned not as much by the low awareness of citizens
(as a rule, mentioned by officials) as by the present state
of the land relations, non-protection of ownership rights,
total distrust in the authorities and confidence of the
majority of citizens that the latter act in their interests and
the interests of the business circles associated with them.
For instance, first, monitoring of the public opinion
about introduction of free purchase and sale of land in
Ukraine conducted by Razumkov Centre proves that the
number of adherents of trade in land “without limitations”
in 2001-2011 fell two-fold – from almost 16% in 2001 to
7% in 2011 (Table “Should free land purchase and sale be
introduced in Ukraine?”. Instead, the number of adherents
of trade only in non-farming land almost doubled – from
4% to 8%, respectively.
The number of adherents of introduction of trade only
in farming land remains steadily small – 9-10%. Similarly,
the number of those who support trade “only in small land
parcels” does not change much. A relative majority of
those polled – 37% in 2001 and 35% in 2011 – believes
that trade in land should not be introduced. The increase
in the share of those who found it difficult to answer from
9% to 17% also strikes the eye.
Second, according to the results of the abovementioned survey “Assessment of land reform in Ukraine
in 2010”:
•
over 51% of land share owners and almost 44%
of farmers is sure that farming land should not be
bought and sold; almost 19% of owners and 28%
of farmers believe that the land market may
be introduced only “when proper conditions
are created”. At that, 12.5% of the polled land
share owners and 12% of farmers believe that free
purchase and sale of land should be allowed only for
Ukraine’s citizens, 13.2% of owners and 12.3% of
farmers – for members of the community where the
land is situated; 3% of land share owners and almost
5% of farmers spoke out for free purchase and sale,
irrespective of citizenship. Among representatives
of local self-government bodies, opponents of the
land market make nearly two-thirds;
•
59% of land share owners reported their negative
attitude to cancellation of the moratorium on purchase
and sale of farming land, a positive attitude was reported
by only 20%. A negative attitude to cancellation of
moratorium also prevails among representatives of
local self-government – two-thirds. Instead, among
farmers and agricultural enterprise managers, a
positive attitude to cancellation was expressed by 49%
of those polled, negative – by 30%.61
3.9. Among the problems and circumstances
that witness Ukraine’s unreadiness for cancellation
Should land purchase and sale be introduced in Ukraine?
% of those polled
There should be unlimited trade in land
Only farming land should be traded
Only non-farming land should be traded
Only large land parcels should be traded
There should be no trade in land
Hard to say
2001
2009
2011
15.7
10.2
3.7
24.8
37.0
8.6
8.6
8.8
8.8
29.1
28.5
16.2
7.0
9.1
7.7
24.0
35.2
16.9
58
See, e.g.: How the precious lands of Kyiv region were stolen. State Land Inspection Head Oleksandr Nechyporenko: “… Unfortunately, courts pass decisions
in favour of those who unlawfully seize parcels. The judicial system is problem No.1”. – May 13, 2009, http://www.dom2000.com (in Ukrainian).
59
See: Potashnyi Yu. Who will get Ukrainian black soil? – Viche, 2009, No.12, http://www.viche.info/journal/1277/ (in Ukrainian).
60
Quoted after: Come, but not overcome. Cadastre remains outlaw. – “My Land” website, http://new1.myland.org.ua/index.php?id=1529&lang=uk (emphasis
added – Ed.) (in Ukrainian).
61
See: Land privatisation in Ukraine: results, effects, prospects…
RAZUMKOV CENTRE
23
of the moratorium and liberalisation of the farming
land market, one should mention maybe the most
important – unaccomplished “grey” distribution
(redistribution) of those lands among the persons who
have the opportunity (powers, connection with the
authorities, etc.) to get those lands for free or not for
their true price.
This fact was witnessed by the Minister of Justice
Oleksandr Lavrynovych who in June, 2010, said that
as long as grey privatisation of land was not over,
the moratorium on market circulation of farming
land would not be cancelled, and the laws necessary
for its cancellation – on the state land cadastre and the
land market – would not be adopted. At the same time,
he reported that in Ukraine, a huge grey market of
farming land had been formed, operating “with a large
criminal input”. Many lands already appeared in private
ownership.62
So, summing up, it may be noted that so far, no
sufficient institutional basis for introduction of a
civilised, transparent market of farming land has
been created in Ukraine (Table “Elements of immovable
property market and their state in Ukraine”).
mentioned by the Minister of Justice, with another
political force and business structures affiliated with it
coming to power, their redistribution will be started.
The practice of change of three ruling teams in
Ukraine showily demonstrated this.
So, one may hardly agree with the abovementioned presidential proposal of the “launch of a
fully-fledged land market in the forthcoming years and
simultaneous provision of reliable legal guarantees
of land use according to its direct purpose”. When
business and power merge together, they need no legal
guarantees. Power is their guarantee, including the
ability to change the legislation, create or liquidate
state structures in their interests.
4. CONCLUSIONS
4.1. The situation in land and property relations in
Ukraine is an element and a derivative of the general
situation in the country:
•
However, the main reason that gives rise to doubts
about the expediency of market opening as soon as in
2012 is different.
close connection (merger) of business and the
authorities, use of power in the interests of
separate persons, families and FIGs, systemic
corruption, extreme politicisation of economic,
business, personnel issues);
•
In a corrupt and politically unstable environment
there can be no civilised, transparent market by
definition. After the “grey” distribution of assets,
absence of a consistent strategy and established
priorities of the country development (which
leads to dispersal and continuous lack of funds);
•
wide practice of drain of funds using corrupt
schemes outside Ukraine to offshore areas;
Elements of the immovable property market and their state in Ukraine
Element
State in Ukraine
Means of identification and description of immovable property,
including land (cadastre)
According to different estimates, the level of SLC AS readiness
makes from 35% to 50%.63 The pilot project of the electronic
land cadastre was tested within the framework of the World Bank
Project in three districts of Vinnytsya region. In fact, it may be
argued that the SLC readiness is conditioned by the implementation
of that Project, under which, in particular, the cartographic basis
for the Ukrainian land cadastre was created.
However, no single SLC system has been built; 6 million state
deeds of land parcel ownership (out of 7.2 million) were issued
without the main attribute of identification – the cadastral number,
so today, the cadastre cannot be used for land parcel identification
on the national scale
Means of formalisation (extension and/or confirmation) of rights to
immovable property (register of ownership rights)
The register of ownership rights to immovable property was
created in 2002; the state land register within the SLC – in 2003. At
present, the registers of rights to immovable property and of rights
to land parcels are kept separately. At that, the State Land Register
in fact has no legal status, since it is not mentioned in the Law “On
State Registration of Ownership Rights to Immovable Property and
Their Encumbrances”.
According to estimates, the level of formalisation of ownership in
Ukraine does not exceed 10%64
62
A big grey market of farming land has been formed in Ukraine. – O.Lavrynovych. – June 18, 2010, http://www.utsb.kiev.ua (in Ukrainian). At that, according
to experts, the problem is not confined to that “underground trade in public (national) property in Ukraine goes on at full pelt”, – “Analysis of the trends of grey
purchase and sale of land in Ukraine proves that that operation is 95% performed not for organisation of agricultural production but solely to get profit from the
change of the target purpose of lands and their resale”. See: Osypchuk S. Land divorcement. – Dzerkalo Tyzhnya, February 11, 2011 (in Ukrainian).
63
See: Land reform without an end in sight… – Silski Vist, June 17, 2011; Will land cadastre count Ukrainian lands? – Radio Liberty, July 7, 2011, http://www.
radiosvoboda.org (in Ukrainian).
24
Element
Means of circulation of rights (on the market of immovable property,
including land)
State in Ukraine
The immovable property market currently does not officially cover
farming land (because of the moratorium); but it is admitted,
including by officials, that from 2007, a grey market of land began
to grow;65 at the beginning of 2009 it was estimated at UAH 800
billion;66 according to some expert estimates, presently, the grey
market accounts for nearly 10% of all lands (or approximately 3
million hectares)67
Financial institutes and other tools (banks; credit unions; mortgage
and mortgage bonds; insurance companies and title insurance, etc)
No state land bank has been created. Mortgage bonds are actually
not circulated. The Law “On Mortgage Bonds” was adopted in
2005, but since then, only three small bond issues have been
emitted, “the latest of them held by a state mortgage institution will
be repaid next August, after which, those securities will ultimately
disappear from the Ukrainian market”;68
The insurance coverage is low: Ukraine accounts for 0.5%
of insurance services provided in Europe – while the country
population makes 7% of the European.69
The practice of title insurance was started on bank demands in
2006-2007 but at the end of 2010 remained, according to insurers,
“exotic” for the country; with the beginning of the crisis of 2008
“insurers were selling the “title” with great reservation”, since it
appeared that in the domestic practice, insurance companies were
not protected against fraud on the part of the insured70
Bodies for protection of ownership rights and dispute resolution
(judicial system)
The judicial branch is strongly dependent on the executive one and
corrupt; the judicial reform implemented by the new ruling team
did not change the situation.71 There is no specialised land court.
Only in 2010 a provision was introduced to the Code of Business
Procedure whereby land despites “are reviewed by the business
court at the location of the object of land relations or its main
part.”72 According to expert conclusions, hostile takeover (including
of land) is actually impossible without the involvement of (corrupt)
courts.73 According to the results of a public opinion poll held by
Razumkov Centre in June, 2011, only less than 15% of Ukraine’s
citizens is sure that courts are guided by the law in their activity.
Almost 66% is sure that the court motives are different: personal
interests of their officers and executives (38.1%) and political
orders from the authorities (27.8%). The indicators that describe
the public opinion about the motives of public prosecutor’s offices
are very much the same.74
64
According to the former Minister of Economy Vasyl Tsushko, the relevant surveys show that at the beginning of 2010, “only meagre 5-8-10% of property
in Ukraine (dependent on calculation methods) had proper title documents”. See: Tsushko V. Operation “Formalisation”. – Ukrayinska Pravda, March 22,
2010, http://world.pravda.com.ua (in Ukrainian). Estimates made by some experts are even more pessimistic. According to freelance advisor to Ukraine’s
President Dmytro Vydrin: “in Ukraine, 96% of ownership is anonymous”. See: Yaroslavskyi M. Sacred private property. The work for Bonaparte. – May 12, 2011,
http://ric.ua (in Russian).
65
Ministry of Agricultural Policy noticed growth of grey land market. – December 12, 2007, http://vkurse.ua (in Ukrainian).
66
Grey economy in Ukraine returned to the 2004 level. – Ministry of Economy. – February 16, 2009, http://vkurse.ua (in Ukrainian).
67
Land reform. – International Centre for Policy Studies, Kyiv, 2011, p.6.
68
See: Prospects of mortgage bond development in Ukraine. – June 10, 2010, Savings Bank of Ukraine website, http://www.oshadnybank.com.ua (in
Ukrainian).
69
How the insurance market is developing in Ukraine (as of 1.01.2011). – Allfinanz Ukraine website, http:/uallfinanz.com (in Russian).
70
Pavlyuchenko Т. Secrets and “reefs” of insurance of ownership rights to immovable property. – December 7, 2010, http://ua.prostobank.ua (in Ukrainian).
71
For more detail see, e.g.: Pastukhova А. Hostile takeover through reforms. – Ukrayinskyi Tyzhden, April 3, 2011, http://tyzhden.ua/ (in Ukrainian).
72
Law “On Introduction of Amendments to the Code of Business Procedure of Ukraine Concerning Determination of Jurisdiction of Cases Dealing with Land
Relations” of February 18, 2010, Article 16.
73
See, e.g.: Venhrynyak Kh. Law provokes hostile takeover. – Yurydychna Hazeta, May 13, 2008, http://www.yurgazeta.com. The authors asserts: “Courts
have a lead role in unlawful actions… Our state knows such nonsense as passage of two opposite court rulings in the same case. Many judicial instances and
absence of clear legislative provision of signs for reference of a case to a specific court provoked a situation where proceedings in the same case may be held in
business, administrative and common courts”; Velychnyi А. Does the Kyiv Business Court Chairman help raiders? – April 16, 2010, http://narodna.pravda.com.
ua/ (“total corruption, including in the judicial branch, has reached the level of real threats to Ukraine’s national security. The scope of seizure or destruction of
other people’s property in this country shocks foreign investors”); Burdak V. Reasons for emergence and development of hostile takeover in Ukraine. – Pravovyi
Tyzhden, 8 July 2088, http://www.legalweekly.com.ua (in Ukrainian).
74
The poll was conducted to the order of Freedom House international public organisation on June 5-9, 2011. 1,210 respondents aged above 18 years were
polled in all regions of Ukraine. The sample theoretical error does not exceed 3%.
RAZUMKOV CENTRE
25
•
legal nihilism that originates primarily from
the state itself (the institute of inviolability,
the practice of non-observance, “suspension”
and direct violation of laws, selective justice,
involvement of many top officials in grey schemes
and deals, striking inconsistency of official
incomes of the persons obliged to submit such
declarations with their expenses, limitations on
access to data about public figures, etc.);
• the common practice of the authorities’
neglect of the rights and interests of ordinary
citizens (hired workers, small owners, minority
shareholders, consumers, etc.);
• poor legislative regulation of many issues,
processes and procedures (the imperfect
notional system that leaves space for arbitrary
interpretation of provisions of regulatory-legal
acts, too many reference norms in laws enabling
“manual management” of the mentioned
processes by executive authorities);
• poor executive discipline, combined with
similarly poor control and total absence of any
personal responsibility of executives for their
political decisions, of officials – for discharge of
official duties;
• poor judicial protection of violated rights because
of corruption in courts and their effective control
by the executive branch.
4.2. In such conditions, the authorities and big
business related with them are not interested in the
establishment of fair and transparent “rules of the
game” in the domain of social relations, first of all, those
dealing with ownership, distribution and redistribution
of the national income through the budget and tax
system. Transparency in those sectors rests primarily
on the accounting of property objects (first of all,
immovable property) and formalisation of ownership
rights, i.e., creation of the cadastre registration system.
Neither business nor the authorities are interested
in its creation, since the existence of a single,
automated, public cadastre registration system is
closely related with control of incomes/expenditures of
officials and/or state servants, imposition of the tax on
immovable property, proper collection of the land tax,
etc. Instead, its endless “formation” using temporary
procedures of keeping enables any machinations with
immovable property (tax evasion, grey distribution
and redistribution of property, etc.) and use of
budget funds for personal purposes, along with the
administrative rent.
4.3. The cadastral and registration systems
effective in Ukraine are inefficient, do not ensure
the required accessibility and quality of services for
users, reliability of the data stored in their databases
is questionable, and the data themselves are closed for
public access. The situation is aggravated by the high
level of corruption in cadastre registration institutions,
which leads, in particular, to overstatement of the
value of services for users and registers’ formation
and keeping for the state (in fact, for taxpayers). At
that, the judicial system is dependent on the executive
branch and similarly corrupt, which does not allow
bona fide owners to protect their violated rights but
enables hostile takeover of land, grey distribution
and redistribution of immovable property, including,
despite the moratorium, farming land.
4.4. It ensues from all that that the main factor of
protraction of the creation of and ultimate refusal from
a single, transparent and public cadastre registration
system is presented by the lack of political will, in
other words – reluctance of the authorities (persons
who exercise power) to create an institute that can put
actions of state structures under public control, create
the basis for introduction of the immovable property
tax, limit the employment of corrupt schemes.
4.5. Meanwhile, the inefficiency, non-publicity and
corruption of the cadastre registration system have
already brought about a number of negative effects for
the country, in particular:
(1) use of land without legal grounds resulting
in budget losses. According to the data cited at the
Parliamentary hearings on March 23, 2011, at present,
1.64 million hectares of land are used without sufficient
legal grounds;1
(2) criminality in land relations. According to the
data released at a briefing in the Ministry of Internal
Affairs, in 2010:
• over 2.7 thousand crimes associated with unlawful
land transactions were detected, including 1.6
thousand – in the field of land privatisation;
• in the detected crime structure, 1.6 thousand
crimes were committed at discharge of official
duties, 259 of them were bribes; half of the rating
of 100 top bribes dealt with land relations;
• unlawful actions in the detected crimes involved
over 31 thousand hectares of land, including 24.4
thousand – of farming land, 1.7 thousand hectares
of the curative, recreational, nature conservation,
historic and cultural and forest stocks;
• losses in the initiated criminal cases total UAH
675 million;
• the most common crimes included: abuse of power
at allocation of land parcels; allotment of parcels to
legal entities with phantoms entered into the lists;
transfer of farming land to other categories and
their allocation in private ownership; unauthorised
seizure of land parcels;2
(3) low investment attractiveness of the national
agricultural sector. According to the Chairman of the
Council of Entrepreneurs under the Cabinet of Ministers
of Ukraine Leonid Kozachenko, in the past 20 years,
Ukraine’s agricultural sector raised only $1 billion of
investments, against the needed $60 billion.3
4.6. In such condition, the authorities tried to step
up the process of introduction of the farming land
market in Ukraine, as witnessed by the adoption of the
Law “On State Land Cadastre” by Parliament. That
step should be welcomed.
However, first, in the domestic practice, adoption of
a law in no way means its implementation (one should
just recall non-observance of the 2004 Law “On
1
Parliamentary hearings on March 23, 2011: “Land in Ukraine’s fate: situation in the land sector, legislative support for land relations and practice of its
implementation”. Records (in Ukrainian).
2
Ministry of Internal Affairs: over 31 thousand hectares land were stolen. – Public Relations Department of the Ministry of Internal Affairs of Ukraine, February
3, 2011, http://tema.in.ua (in Ukrainian).
3
Investment attractiveness of Ukraine’s agricultural sector. – June 19, 2011, http://zsu.org.ua (in Russian).
26
CONCLUSIONS AND RECOMMENDATIONS
State Registration of Proprietary Ownership Rights
to Immovable Property and Its Limitations” by the
Ministry of Justice).
Second, even brief comparative analysis of the
mentioned laws (the second one – in the wording of
2010) proves that their provisions do not envisage
a “one-stop” approach in provision of services and
public access to the land cadastre information and
the register of rights in the proper volume, and the
number of reference norms lets us assume that the
laws leave possibilities for “manual management”
of land relations by the executive authorities at the
present level – with all ensuing consequences.
Third,
the
heading
towards
accelerated
introduction of the market of farming land has not
met sufficient support of citizens (including village
residents, farmers, land share owners), which may
be attributed, first of all, to the strong mistrust in the
authorities and, respectively, their actions, none of
which has had a positive effect on the living standard
of the overwhelming majority of society members.
5. RECOMMENDATIONS4
Given the situation in Ukraine described above,
the level of corruption and legal nihilism, the general
thrust of the state policy and agency operation, it may
be said that without changing the situation, limitation
of corruption and restoration of public trust in the
authorities, no cadastre registration system – unitary
or two-component – will be efficient.
5.1. Formation of the state cadastre registration
system should be imbedded: first, in a general, realistic
and practical, not declarative, programme of reducing
corruption in the country; second, in a similarly
realistic and practical Programme of socio-economic
development of Ukraine specifying the goals, priorities
and objectives, including the land reform, of the state
land policy, and most of all – the actors possessing
interests and rights, for whose sake the Ukrainian
state operates.
5.2. On the other hand, creation of the cadastre
registration system could be used as the first step to
minimisation of corruption and refocusing of the
state (the authorities) from protection of interests
of a narrow circle of persons to protection of rights
of the overwhelming majority of citizens. However,
judging by the content of the above-mentioned laws,
this will not happen. First of all, because the Register
of ownership rights will, as before, stay non-public,
and obligations to register ownership – formal. So, it
seems reasonable to introduce to the Law “On State
Registration of Ownership Rights…” and/or to the
Civil Code a norm expressly formulating the principle
that “an unregistered right does not exist”.
Given that the national legislation on personal
data protection and guarantee of inviolability of
private life does not take into account the difference
between private persons and persons exercising state
power in the name and at the expense of society, is
also seems reasonable to start wide public discussion
of that problem. Society should decide, which
persons to whom it delegated the right to exercise
power should be categorised “public”, not subject
to strict norms of privacy protection during their
discharge of administrative powers (or powers of
local self-government), in particular, with respect to
4
incomes and expenditures, possession of property
and correspondence of its value to officially declared
incomes and paid taxes.
This problem is sensitive in many countries, including
much more democratic than present-day Ukraine.
However, there is the experience of its solution, too, that
should be presented for discussion to the public and the
expert community. Legal regulation of that problem has
long been on the agenda for Ukraine, since without it, it is
impossible to deprive corruption of a systemic nature, let
alone its curbing.
5.3. In any case, liberalisation of the farming land
market (cancellation of the moratorium) should be
preceded by:
(1) promotion of true independence of the judicial
branch and true responsibility of judges for passage of
doubtful, ordered, unlawful rulings;
(2) introduction of a package of anticorruption
laws;
(3) refusal from the practice of excessive use of
reference norms in legislative acts and regimentation
of critical procedures (e.g., of the State Land Cadastre
keeping) by acts of executive bodies;
(4) creation of a guarantee fund for reimbursement
of losses that can be inflicted to users by cadastral and/or
registration systems;
(5) encouragement of the cadastre system development towards standardisation and compatibility of all
cadastre types.
As well as:
• full inventory of lands and immovable property,
creation of a complete, accurate and reliable
database;
• completion of issue of state deeds of land ownership,
delimitation of land parcels in kind (in situ);
• completion of zoning of the country territory with
delimitation in kind (in situ) of all exclusive areas
natural preserves, conservation areas, protected
areas of cultural monuments, etc.;
• market valuation of lands of all categories and
support for proper administration of the immovable
property tax;
• encouragement of mortgage lending against land;
• analysis of the available land cadastre documentation for authenticity of allocation and delimitation
of land parcels in kind (in situ) and their correlation
with the relevant cadastral maps.
Deemed as the term of cancellation of the
moratorium on farming land purchase and sale and
introduction of a free land market should be not an
arbitrarily set date but the time of full achievement
the above preconditions.
That is why Razumkov Centre’s experts see it
necessary to continue and step up public discussion
of the problems of the state land policy exactly in the
context of the current situation in the country and
with account of the priority of changes in the field
of fighting systemic corruption, legal nihilism of the
authorities and dependence of the judicial system.
Those changes should precede all other reforms.
See also the article by Malcolm Childress “An Idealized Model Land Administration System: a Thought Experiment”, published in this journal.
RAZUMKOV CENTRE
27
WHAT SHOULD THE CADASTRE REGISTRATION
Which cadastre registration system,
by the organisational principles,
is more expedient for Ukraine?
% of those polled experts
How should land parcels and buildings
and constructions on them be registered?
% of those who consider the dualist system more expedient
Unitary (single, or complex), where the State
Land Cadastre and the Register of Rights to
Immovable Property (including land parcels)
are united in one database kept
and managed by one institution
66.7
Dualistic (twocomponent), where the State Land
Cadastre and the Register of Rights to Immovable
Property (including land parcels)
are kept separately from each other
27.9
Land parcels and buildings and
structures on them should be
registered together by the State
Agency for Land Resources
Separately (by the State Agency
for Land Resources and the Bureau
of Technical Inventory)
12.9%
80.6%
6.5%
Organisational principles are unimportant
1.8
Hard to say
3.6
Which institution (organisation) should
keep the cadastre registration system?
% of those who consider the unitary system more expedient
State Agency for Land Resources
(legal successor to the State Committee for Land Resources)
41.9%
State Registration Service of Ukraine
under the Ministry of Justice of Ukraine
How important is the creation of the cadastre
registration system for each of the following sectors?*
average score
Protection of ownership rights,
removal of opportunities for hostile
takeover of land parcels and/or real estate
4.4
Management of land resources by
the state and local selfgovernment bodies
4.4
Land planning
4.3
20.3%
A special central executive body
that should be created for unification of the Land Cadastre and
the System of Registration of Rights to Immovable Property
A special independent executive body (like the State Property Fund)
that should be created for unification of the Land Cadastre and
the System of Registration of Rights to Immovable Property
Main Department of Geodesy, Cartography and Cadastre
Hard
to say
17.6%
14.9%
1.4%
Enhancement of state bodies’ responsibility for
official information they give about land parcels,
immovable property and rights to them
Cancellation of the moratorium
on alienation of farming land
4.1
Rational use and protection of land
4.0
Formation of other cadastres,
including of urban planning
4.0
State Property Fund of Ukraine 0.0%
Other
1.4%
Realistic valuation of land, setting realistic
rates of land fees and their collection
3.9
Hard to say
2.5%
Imposition of a tax on immovable property
3.9
Minimisation of corruption in land relations
Where should proceeds from registration of land parcels,
buildings and constructions, rights to them, and issue
of certificates (extracts, other records) obtained by legal
entities and individuals from the cadastre registration
institutions (institutions) be directed?
On what media should the cadastre
registration system be kept
(no matter, unitary or multicomponent)?
43.2%
Simultaneously on paper
and electronic media
Come to the account of the institutions (institutions)
keeping the cadastre registration system
30.6%
On electronic medium
Be accumulated on a special CMU account
9.9%
Other
9.9%
6.4%
3.8
* On a fivepoint scale from 1 to 5, where “1” means “unimportant”,
“5” – “decisively important”.
Be transferred to the state budget
Hard to say
28
4.3
79.3%
16.2%
On paper 0.9%
It does not matter
2.7%
Hard to say 0.9%
ANNEX 1
SYSTEM IN UKRAINE LOOK LIKE: EXPERT POLL
Which institution should assign individual
cadastral numbers to land parcels?
State Agency for Land
Resources of Ukraine
State Registration
Service of Ukraine under
the Ministry of Justice
0.0%
96.8%
Bureau
of Technical Inventory
3.2%
Should a land parcel be assigned, in addition
to the cadastral number, a registration number
during its registration in the State Register
of Ownership Rights to Immovable Property?
Yes, every institution (BTI, the
State Registration Service of
Ukraine) assigns its registration
number, independent of the
land cadastre
No
35.5%
48.4%
Hard
to say
0.0%
Hard to say
16.1%
If the electronic cadastre system is kept
simultaneously on paper and electronic media,
which form shall have precedence in case
of discrepancies in records?
In case of discrepancies one should find out which
record corresponds to the true state of affairs and
correct the erroneous record accordingly
On paper
On electronic medium
Hard to say
Should a cadastre registration
record of farming land (land plots)
differ from a record
of nonfarming
land plots?
48.6
43.2
6.3
1.9
Is it necessary to establish at the cadastre registration
institution (institutions) an insurance fund in case
of a mistake in cadastre registration records,
to indemnify losses, if any,
sustained through such mistake?
Yes, records of farming land plots
must contain data of the plot purpose,
land quality, etc.
59.5
No, records of farming and
nonfarming land plots should
be under the same form
36.0
Other
0.9
Hard to say
3.6
Why is the creation of a single cadastre
registration system delayed in Ukraine?*
No
Yes
15.3%
74.8%
Hard
to say
9.9%
If so, at whose expense
should such fund be created?
% of those who consider it necessary to establish at the
cadastre registration institution (institutions) an insurance
fund in case of a mistake in cadastre registration
records to indemnify losses sustained
through such mistake
Of the institution (institutions)
discharging cadastre registration functions
43.4%
41.0%
Of the state budget
Of entities involved in land relations
3.6%
Other
3.6%
Hard to say
8.4%
Due to lack of political will, reluctance of some persons
in and around the government to establish order
in state land records and registration of rights to land
parcels and immovable property, since creation of a single,
transparent and open cadastre registration system will limit
opportunities for tax evasion (of minimisation), grey deals
involving immovable property, and vice versa – enable
calculation of realistic rates of land fees and introduction
of the tax on immovable property
49.5
Due to interagency contradictions, desire of some
agencies to keep for themselves creation and keeping
of some registers as a guarantee of employment of their
officers and enhancement of their role within the system
of state governance bodies
46.8
Due to inconsistency of the state policy in this domain
39.6
Due to lack of funds
20.7
Due to incomprehension of the importance of creation
of such system by state officials and politicians
18.9
Due to lack of experts
12.6
Other
7.2
Hard to say
6.3
* Experts were supposed to mark all possible answers.
RAZUMKOV CENTRE
29
PUBLIC OPINION ABOUT THE
LAND MARKET AND CADASTRE
REGISTRATION SYSTEM
AS ITS ELEMENT
T
ransparency is a condition indispensible for efficient functioning of the land market, and the cadastre
registration system is one of the mechanisms designed to ensure it. During its creation it is important
to take into account the opinions of the land market actors and the problems they encounter in course of
registration of land and immovable property ownership rights. Those problems and citizens’ attitude to the
land market formation in general were covered by the sociological survey conducted by the Razumkov Centre
Sociological Service.1
Attitude to private land ownership. Ukrainian
citizens in general have no dominant opinion about
private land ownership: while 41% gave an affirmative
answer to the question “Should there be private land
ownership?” and only 13.2% – negative, another 32.4%
believes that such ownership should exist only with
respect to small plots.
It should also be noted that compared to 2001,
the number of those who strongly support the idea of
private land ownership decreased from 47% to 41% at
the expense of growth of the share of those undecided.2
The number of opponents of private land ownership also
decreased, but not so strongly (from 15.8% to 13.2%).
The share of adherents of private ownership of small plots
did not statistically change.
City and village residents demonstrate diverse trends:
while in cities, the number of adherents of private land
ownership goes down (46.6% in 2001, 40.4% in 2009 and
37.1% in 2011), among village residents, a decrease in their
share was observed in 2009, compared to 2001 (from 47.9%
to 39.5%), and in 2011, their the number returned to the 2001
level (49.6%). While, compared to 2009, in cities the number
of adherents of ownership of small plots increased (28.1% to
34.4%), in villages – decreased (from 33.8% to 28%).
Therefore, for the time being, village residents more
than citizens support private land ownership, and in rural
areas adherents of private land ownership outbalance
the aggregate of opponents and those who admit private
ownership of only small plots.
In cities, among respondents owning land plots,
the number of adherents of private ownership is greater
than among those who own no land (43.4% and 33.3%,
respectively). Instead, support for private land ownership
among village residents little depends on land plot
ownership.
Compared to 2001, the number of adherents of private
land ownership most of all decreased in the West3 (from
60.5% in 2001 to 42.1% in 2009), although in 2011, some
growth was observed (49.2%). Despite the described
changes in public spirits in the West, the number of
adherents of private land ownership in that area remains
higher than in the other regions.
In the eldest age group the share of adherents
of private land ownership is lower (34.2%) than in
younger and medium age groups (41-46%). The share of
opponents grows with age (from 8.3% among respondents
of 18-29 years to 19.7% - of 60+ years). Therefore, the
attitude to that question depends on in what historic
period the people’s consciousness was formed.
Attitude to private ownership of farming land.
Here, few people share the extreme opinions: “private
land ownership is inadmissible” – 12.5%, and “private
1
Cited are the results of public opinion polls conducted by the Razumkov Centre Sociological Service in March, 2011 (2,011 respondents polled), March 2009
(2,012), February 2002 (2,012), May 2001 (2,000 respondents). All polls were conducted using multistage sample with quota selection of respondents at the
final stage, representative of the adult population of Ukraine in terms of the key socio-demographic indicators (area of residence, settlement type and size, age,
gender). The sample theoretical error for all polls does not exceed 2.3%.
2
Those changes took place between 2001 and 2009, the 2011 poll results do not statistically differ from the results of 2009.
3
The regional division is as follows: the West: Volyn, Transcarpathian, Ivano-Frankivsk, Lviv, Rivne, Ternopil, Chernivtsi regions, the South: the Autonomous
Republic of Crimea, Odesa, Kherson, Mykolayiv regions, the East: Dnipropetrovsk, Donetsk, Zaporizhya, Luhansk, Kharkiv regions, the Centre: city of Kyiv,
Vinnytsya, Zhytomyr, Kyiv, Kirovohrad, Poltava, Sumy, Khmelnytskyi, Cherkasy, Chernihiv regions.
30
PUBLIC OPINION
ownership should exist without any limitations” – 7.8%.
At that, compared to 2002, the share of those who sticks
to the latter opinion somewhat decreased (from 10.2%
to 7.8%) (Diagram “What is your attitude to private
ownership of farming land?”). Also decreased the share
of those who believes that private ownership is admissible
only for Ukrainian citizens (from 34.2% to 25.7%), at the
expense of growth in the shares of those who believes that
“private ownership is admissible only on a small scale
for those who personally cultivate land” (from 35.1% and
39.1%), and those undecided (from 6% to 14.2%).
Among all citizens, adherents of introduction of
some limitations of private ownership of farming land
prevail – either only small-size, those who personally
cultivate land, or only for Ukrainian citizens. The opinion
of farming land plot owners differs from that of other
respondents only by stronger support for allowing private
ownership of farming land only for Ukrainian citizens
(34%, among all those polled - 25.7%).
The number of adherents of extreme opinions in all
regions, compared to 2002, remained almost the same.
In all regions, except the South, the share of adherents of
private ownership only for Ukrainian citizens decreased
(although in the South their share was and remains one
of the lowest). In the East, the share of respondents
who believe that private ownership is admissible only
on a small scale for those who personally cultivate land
increased from 38.7% to 45.8%.
Representatives of the eldest age group more often
(18.7%), than representatives of other age groups (from
9% to 12%) consider private ownership of farming land
inadmissible.
Attitude to introduction of free purchase and sale
of land. A relative majority (35.2%) of citizens believes
that trade in land should not be introduced, 24% supports
trade in only small plots. Roughly as many people shared
those opinions in 2001 (Diagram “Should free land
purchase and sale be introduced in Ukraine?”). The share
of adherents of introduction of trade in only farming land
also did not statistically change. Compared to 2001, from
15.7% to 7% decreased the number of adherents of trade
in land without limitations, and somewhat increased (from
3.7% to 7.7%) the share of adherents of introduction of
trade only in non-farming land.
Quite expectedly, the attitude to land purchase and
sale depends on the attitude to private land ownership.
Adherents of private land ownership are more than among
all those polled on the average support trade in land
without limitations (15.4%), and introduction of trade
only in farming land (14.2%). Meanwhile, representatives
of that group more frequently give the answer “Only
small land parcels should be traded” (27%), and 19.7%
of them flatly opposes trade in land.
RAZUMKOV CENTRE
The two latter stands are even more frequently (34.4%
and 37.9%, respectively) supported by adherents of
small land plot ownership. Among opponents of private
land ownership, 82.1% also stands against its purchase
and sale. Therefore, even adherents of private land
ownership mainly stand for limitations on land
purchase and sale.
The share of adherents of introduction of trade in
land without limitations decreased among both city
and village residents, compared to 2001. Meanwhile, in
the country, the share of opponents of introduction of trade
in land also decreased (from 43.1% in 2001 to 34.5%). In
cities, the share of opponents remained the same (34.4%
and 35.5%, respectively). At that, the number of adherents
of trade in non-farming land increased among both city
and village residents. Village residents show a somewhat
higher than citizens share of adherents of trade in land
without limitations (9.9% and 5.7%, respectively), and
trade in non-farming land (10.2% and 6.7%, respectively).
Changes in the public opinion, compared to 2001,
seriously differ by region. In the West, the most “marketminded” in 2001, the share of opponents of trade in land
substantially increased, and the number of adherents of
trade in it without limitations, trade only in farming land
and in small plots decreased. In the South, the opposite
trend was observed: the number of opponents of trade in
land decreased, while the share of adherents of trade in
small plots and non-farming land increased. In the Centre
and East, the number of opponents of trade in land did
not change (while the number of adherents of unlimited
trade in land decreased). At that, in the East, the share
of adherents of trade in small plots also decreased, as
increased the share of adherents of trade in non-farming
land (the same also refers to the Centre).
The South demonstrates higher, compared to other
regions, support for trade in land, but this refers only to
trade in small plots and non-farming land.
The younger respondents are, the less they oppose
trade in land. The eldest age group has a smaller,
compared to all those polled, share of adherents of trade
in small land plots.
Experience of registration of land ownership rights.
22.6% of all citizens (among those who have a land plot 40.2%) over the past 10 years had to personally go through
the procedure of getting a deed of private land ownership
from bodies of land resources or their divisions, to have
lease rights registered, to take a certificate of a land plot
value, other documents or certificates (Diagram “Did
you have over the past 10 years…?”). In most cases, that
procedure took 2-3 months (as reported by 26.4% of those
who passed it) or from a few months to a year (22.5%),
11.9% – more than a year, 14.4% – from 16 days to a
month, 17.3% – 15 days or less.
31
LAND MARKET AND CADASTRE REGISTRATION SYSTEM
The terms of execution of documents in rural
areas proved much longer than in cities. While among
city residents, 25.6% reported that they had their
documents processed over three months, among village
residents – 44.4%.
44.9% of those who had their documents executed
reported that they did not have to pay more than envisaged
by the law; another 16% did not remember whether
they had to overpay (Diagram “What sum of money did
you have to spend…?). 38.5% reported that they had to
overpay: 11.4% overpaid less than UAH 200, another
11.4% – from UAH 200 to UAH 1,000, 6% – over UAH
1,000 (9.7% reported overpayment but did not remember
how much).
Comparison of the terms of getting documents by
representatives of two groups – those who overpaid
for the execution and those who did not – revealed that
among the former, more respondents than among the
latter had their documents executed for more than a year
(15.5% and 6.9%, respectively). So, it may be assumed
that exactly the delay of document execution made them
to overpay.
Experience of registration of immovable property
ownership rights. 27.7% of citizens had to personally
obtain documents or certificates that acknowledge their
right to immovable property from the Bureau of Technical
Inventory (BTI) over the past 10 years.
Usually, that procedure lasted from 2 to 3 months
(26% of those who passed it) or from 16 days to a month
(21.7%). 11.8% reported that it lasted from a few months
to a year, 4.4% – more than a year, 12.6% – 8 to 15 days,
12.3% – 1 to 7 days.
Document execution terms for village residents proved
much longer than for citizens. While among city residents,
33.7% reported that they waited for their documents more
than two months, among village residents – 57.7%.
50.9% of those who had their documents executed
reported that they did not have to pay to BTI officers more
than envisaged by the law (another 13.6% reported that
they could not remember whether they had to overpay).
35.1% overpaid: 12.2% – up to 200 UAH, 7.3% – from
UAH 200 to UAH 1,000, 3.4% – over UAH 1,000 (12.2%
could not recall the exact sum).
Among those who overpaid for document execution,
more people than among those who did not do that had to
wait for their documents over three months (20.5% and
12.3%, respectively).
17.5% of respondents over the past 10 years had to
get from bodies of justice or their divisions documents or
certificates proving their right to ownership of immovable
property. Usually, that procedure lasted from 3 to 15 days
32
(so long it took for 26.5% of those who passed it), from
16 days to a month (18.1%) or 2-3 months (18%). 8%
reported that it lasted from a few months to a year, 4.9% –
more than a year, 12% – 1-2 days.
As well as in the previous cases, document execution
terms for village residents proved much longer than for
citizens. While among village residents, 43.5% reported
that they had their documents executed for more than two
months, among city residents - 23.9%.
54% of those who had their documents executed
reported that they did not have to pay more than envisaged
by the law (another 12.1% reported that they could not
remember whether they had to overpay: 11.2% – up to
200 UAH, 8.2% – from UAH 200 to UAH 1,000, 1.8% –
over UAH 1,000 (11.9% reported that they overpaid but
did not remember exactly how much).
Among those who overpaid for document execution,
more people than among those who did not do that had to
wait for their documents over 15 days (61.8% and 46.3%,
respectively).
People’s opinions about a better place to organise
registration of land plots and immovable property
ownership rights. The majority of those polled could
not answer that question (32% found it hard to say,
24.8% did not care about that). 17% of all those polled
(or 22.9% of those who had documents of land or
immovable property ownership executed) believes that
registration should be conducted by the State Committee
for Land Resources and its divisions; 6.8% and 10.1%,
respectively – by the Ministry of Justice and its divisions,
but most of all (19.4% and 25.6%, respectively) – that
it should be conducted by “another state institution,
combining those registers”.
Proceeding from the above, the following may be
said.
Ukrainian citizens have no dominant opinion about
private land ownership, which may be conditioned by
the controversy of the processes taking place in that
sector.
A “cautious” attitude of Ukrainians to big land
ownership is most probably caused by fears that big
land owners will acquire strong influence and dictate
terms to residents of the region where their estate is
situated and to local authorities. This is manifested,
in particular, in the strong support for introduction of
some limitations on farming land ownership – either
only small-size, for those who personally cultivate
land, or only for Ukrainian citizens.
Similarly, a relative majority of those polled
supports introduction of limitations on purchase and
sale of land (such as permission of trade in either
PUBLIC OPINION
small plots, or non-farming plots, or, on the contrary,
only farming plots). Even adherents of private land
ownership mainly stand for limitations on land
purchase and sale.
or registration of lease rights usually (nearly half of all
cases) lasts from two months to a year. The procedure
of obtaining documents or certificates that acknowledge
people’s right to immovable property from BTI usually
(nearly half of all cases) lasts from 2 weeks to 3 months,
and getting from bodies of justice or their divisions
documents or certificates proving the right of immovable
property ownership, including by inheritance – from 3
days to 3 months (almost two-thirds of all cases).
It may be assumed that shortcomings in the land
policy led to a decrease of support for market reforms
in the land sector in the recent years.
City and village residents show different trends:
while in cities, the number of adherents of private
land ownership has been going down since 2001,
among village residents, a decrease in their share was
observed in 2009, compared to 2001, and in 2011, the
number of adherents returned to the 2001 level. Now,
village residents more than citizens support private
land ownership.
Over a third of those who had their documents
executed reported that they had to pay for the
documents more than envisaged by the law. They may
be prompted to do that, among other things, by the
protracted process of document execution.
Document execution terms in rural areas are much
longer than in cities.
The attitude to the land policy is largely shaped by
ideological stereotypes. This is proven by differences
in the stand of the younger and elder generations
whose consciousness was formed in different social
conditions.
Bureaucratisation of the process of documentation
of ownership rights prompts many people to believe
that it is better to organise registration of land plot and
immovable property ownership in a state institution
combining registers of land plots and immovable
property.
The procedure of getting a deed of private land
ownership from bodies of land resources or their divisions
Should there be private land ownership in Ukraine?
% of those polled
Centre
UKRAINE
2001
47.0%
2009
15.8 6.6
30.6%
40.2%
46.1%
2001р.
15.0
29.8%
2009р.
42.2%
29.5%
40.5%
2011р.
15.0
26.2%
28.2%
18.2 9.5
15.5 12.8
17.3 14.0
West
2011
41.0%
13.2 13.4
32.4%
2001
2009
Yes
2011
There should be private ownership of only small land plots
No
5.3%
30.4%
60.5%
42.1%
30.1%
49.2%
12.0 15.8
26.3%
2001
Hard to say
AGE
3039
4049
5059
60 and
over
41.3%
33.5%
46.4%
30.1%
45.3%
41.3%
34.2%
31.2%
2009
37.7%
2011
37.4%
5.0%
18.4
33.6%
43.0%
17.8 15.3
29.2%
35.7%
14.1 12.8
8.3 16.9
9.0 14.5
34.5%
33.0%
East
9.5 15.0
2011
1829
3.8%
South
12.0 8.2
15.4
19.7
10.3
2001
40.9%
2009
39.4%
2011
14.9
33.9%
31.1%
39.3%
42.3%
17.6 7.6
11.6 17.9
6.9 11.5
2011
% of those who have
a land plot in private ownership
TYPE OF SETTLEMENT
City
46.6%
40.4%
37.1%
Village
31.2%
28.1%
34.4%
16.0 6.2 2001
16.4
15.1
2009
14.7
2011
13.8
Yes
47.9%
39.5%
49.6%
15.3
29.0%
33.8%
11.9
28.0%
There should be private ownership of only small land plots
RAZUMKOV CENTRE
7.8
14.8
11.7 10.7
No
46.5%
34.9%
10.2 8.4
% of those who have no land plot
35.4%
29.5%
16.4
18.7
Hard to say
33
What is your attitude to private ownership of farming land?
% of those polled
2002
2009
2011
Private ownership
is acceptable only
for Ukraine’s citizens
Private ownership is
acceptable only on a small
scale for those who
themselves cultivate land
Private land ownership
is totally unacceptable
44.0%
25.1%
35.5%
30.5%
35.5%
35.2%
Private ownership should
be free of any limitations
12.9%
8.3%
8.0%
scale for those who
Private ownership
is acceptable only
Other
Hard to say
38.2%
25.6
9.1%
8.7%
0.4%
18.0%
3039
37.3%
27.7
9.0%
9.2%
0.3%
16.5%
4049
43.9%
23.6
11.9%
7.8%
0.9%
11.9%
6.0%
14.1%
14.3%
0.4%
1.4%
0.6%
15.2%
18.6%
16.0%
6.3%
6.5
3.8%
0.3%
4.0%
0.0%
0.4%
1.2
1.2%
Other
6.4%
13.6%
16.0%
Hard to say
5.9%
14.1%
12.0%
TYPE OF SETTLEMENT
AGE
1829
33.5%
25.3%
21.2%
11.3%
7.0%
8.5%
6.8%
13.6%
15.5%
Hard to say
38.7%
34.3%
45.8%
Private ownership
is acceptable only
16.9%
7.6%
5.6%
0.5%
0.9%
0.3%
Other
5.6%
15.1%
14.3%
24.9%
22.8%
22.5%
16.1%
16.7%
15.1%
0.3%
0.5%
0.8%
34
2002
2009
2011
scale for those who
40.2%
45.0%
47.4%
33.2%
25.0%
25.9%
Private ownership
is acceptable only
11.5%
9.9%
13.4%
Hard to say
East
South
scale for those who
6.1%
10.2%
8.0%
Other
Centre
West
32.5%
39.2%
28.0%
10.2%
7.8%
7.8%
14.1%
14.7%
12.5%
34.2%
24.8%
25.7%
35.1%
37.2%
39.1%
UKRAINE
5059
42.6%
26.6
12.3%
8.1%
1.4%
9.0%
60 and
over
City
Village
34.7%
35.8%
41.6%
scale for those who
34.7%
24.5%
23.0%
Private ownership
is acceptable only
36.1%
40.3%
33.5%
35.6%
32.6%
25.7%
31.8%
25.0
18.7
5.6%
0.4%
14.7%
14.1%
15.9%
13.2%
10.2%
8.3%
6.7%
0.4%
0.9%
0.6%
5.9%
14.6%
14.9%
Other
Hard to say
13.9%
12.0%
11.0%
10.1%
6.7%
10.2%
0.2%
2.3%
0.8%
7.1%
13.0%
12.7%
2002
2009
2011
PUBLIC OPINION
8.6%
16.2%
17.0%
Only farming land
should be traded
15.7%
8.6%
7.0%
Only small land parcels
should be traded
There should be
unlimited trade in land
Hard to say
3.7%
8.8%
7.7%
10.2%
8.8%
9.1%
There should be
no trade in land
UKRAINE
24.8%
29.1%
24.0%
37.0%
28.5%
35.2%
Should free land purchase and sale be introduced in Ukraine?
% of those polled
Only nonfarming land
should be traded
2001
16.8%
24.8%
32.8%
21.5%
23.8%
23.0%
should be traded
13.1%
9.9%
6.9%
24.8%
11.0%
12.8%
15.6%
9.1%
6.2%
There should be
12.6%
15.8%
25.4%
31.0%
20.4%
should be traded
Only farming land
should be traded
9.4%
3.6%
10.4%
6.7%
6.6%
15.7%
should be traded
2.2%
10.5%
7.0%
12.7%
6.6%
8.8%
There should be
12.1%
7.8%
3.5%
9.0%
Hard to say
43.8%
31.3%
41.6%
There should be
no trade in land
9.3%
5.0%
6.2%
3.2%
8.4%
6.2%
should be traded
9.9%
21.2%
18.3%
38.0%
22.8%
18.0%
23.0%
40.6%
34.3%
9.7%
15.5%
10.5%
Only farming land
should be traded
East
South
41.0%
30.6%
38.3%
There should be
no trade in land
4.5%
7.8%
5.4%
2011
Centre
West
30.9%
25.3%
23.8%
2009
10.3%
18.4%
17.0%
7.1%
15.8%
17.1%
Hard to say
2001
2009
2011
% of those polled, dependent on the attitude to private land ownership
TYPE OF SETTLEMENT
Should there be private land ownership in Ukraine?
There should be trade
only in small land parcels
Yes
There should be
no trade in land
should be traded
Only farming land
should be traded
should be traded
There should be
14.2
Hard to say
14.9
27.0%
82.1%
5.0%
34.4%
4.6%
6.9%
8.8%
2.3%
10.9%
1.2%
0.8%
5.2%
8.7%
AGE
1829
There should be
no trade in land
should be traded
Only farming land
should be traded
should be traded
There should be
Hard to say
29.2%
26.8%
3039
4049
30.5%
27.1%
34.5%
29.1%
5059
60 and over
37.4%
22.9%
42.6%
16.8%
8.5%
8.4%
8.1%
10.3%
7.6%
6.6%
8.1%
8.7%
7.5%
7.4%
9.2%
7.8%
6.4%
5.1%
20.5
18.2
12.4%
Village
No
37.9%
19.7%
15.4
City
14.3%
10.1%
34.4%
27.1%
35.5%
26.7%
30.9%
24.4%
should be traded
11.0%
8.1%
9.5%
Only farming land
should be traded
3.2%
9.3%
should be traded
6.7%
16.3%
9.5%
5.7%
There should be
8.4%
15.1%
18.2%
20.2%
24.7%
23.1%
8.1%
10.5%
8.4%
4.8%
7.7%
10.2%
14.3%
6.6%
9.9%
9.5%
18.8%
13.9%
Hard to say
17.9%
2001
RAZUMKOV CENTRE
43.1%
31.7%
34.5%
There should be
no trade in land
2009
2011
35
Did you have to get from agencies in charge
of land resources or their divisions a deed of private
land ownership, register a lease, obtain a certificate
of a land parcel value, other documents and
certificates over the past 10 years?
% of those polled
Did you personally have to get documents
or certificates proving your title to immovable property
(a building, an apartment, etc.) from the Bureau
of Technical Inventory (BTI) over the past 10 years?
% of those polled
No
66.8%
No
71.1%
Yes
27.7%
Yes
22.6%
Do not remember,
no answer
6.3%
If so, how much time did it take?
% of those who obtained certificates or documents from BTI
% of those who obtained a deed
1.7%
Two day
1.2%
From 3 to 7 days
3.4%
0.0%
1.3%
8.4%
6.7%
26.4%
From several
months to a year
2.1%
2.5%
4.7%
From 16 days
to a month
10.3%
30.8%
10.4%
7.5%
No overpayment
From several
months to a year
One day
2.0%
Two day
7.4%
15.7%
6.9%
More than a year
6.2%
Do not remember,
no answer
6.1%
14.5%
31.0%
3.1%
2.1%
Two day
3.1%
From 3 to 7 days
20.0%
29.7%
From several
months to a year
3.5%
15.4%
More than a year
5.1%
Do not remember,
no answer
9.5%
44.9%
14.4%
23 months
26.8%
15.5%
2.4%
6.2%
From 8
to 15 days
From 16 days
to a month
8.8%
21.8%
Overpayment
One day
23.6%
13.8%
Nothing in excess of envisaged by the law
3.0%
What sum of money did you have to spend
in excess of that envisaged by the effective
legislation when getting documents or certificates?
% of those who obtained certificates or documents from BTI
50.9%
Overpaid up to 50 hryvnias
3.4%
From 51 to 100 hryvnias
4.2%
4.7%
3.8%
4.1%
4.6%
3.4%
3.8%
From 501 to 1,000 hryvnias
6.8%
3.5%
From 1,001 to 5,000 hryvnias
4.9%
3.3%
Over 5,000 hryvnias
I had to overpay in excess of the established
norm but do not remember the exact amount
1.1%
9.7%
I do not remember if I had to overpay
No answer
5.1%
1.8%
12.3%
6.3%
What sum of money did you have to spend
in excess of that envisaged by the effective
% of those who obtained a deed
36
17.9%
3.6%
11.2%
11.6%
6.3%
From several
months to a year
24.0%
33.7%
21.7%
No overpayment
23 months
26.5%
17.3%
8.4%
4.4%
0.6%
From 8
to 15 days
From 16 days
to a month
8.7%
24.0%
11.8%
2.3%
From 3 to 7 days
14.8%
% of those polled, depended
on overpayment for getting deeds
Overpayment
2.0%
7.7%
26.0%
Do not remember,
no answer
3.7%
1.5%
21.7%
9.3%
2.0%
8.6%
12.6%
More than a year
13.6%
10.5%
8.4%
23 months
30.8%
15.1%
11.9%
Do not remember,
no answer
Two day
From 8
to 15 days
22.3%
22.5%
More than a year
Village
1.9%
4.7%
18.1%
14.4%
23 months
City
1.8%
From 3 to 7 days
1.4%
10.5%
7.7%
From 8
to 15 days
From 16 days
to a month
UKRAINE
One day
Village
City
UKRAINE
One day
Do not remember,
no answer
5.5%
16.0%
Over 5,000 hryvnias
0.1%
0.6%
No answer 0.4%
12.2%
13.6%
PUBLIC OPINION
Did you have to get from bodies of justice and
their divisions (including notary offices) documents,
certificates, etc. proving your title to immovable
property, including inherited,
over the past 10 years?
% of those polled
Did not overpay
One day
12.8%
Two day
No
76.2%
4.8%
From 3 to 7 days
17.6%
From 8 to 15 days
12.2%
From 16 days to a month
Do not remember,
no answer
Yes
17.5%
17.6%
23 months
18.6%
6.3%
From several months to a year
% of those who obtained certificates
or documents at bodies of justice
UKRAINE
One day
Two day
9.3%
From 3 to 7 days
13.2%
From 8
to 15 days
13.3%
14.6%
From 16 days
to a month
18.1%
23 months
18.0%
From several
months to a year
More than a year
Do not remember,
no answer
8.0%
12.5%
5.6%
17.7%
24.2%
14.5%
4.8%
12.0%
13.8%
What sum of money did you have to
spend in excess of that envisaged by the effective
% of those who obtained certificates
or documents at bodies of justice
1.7%
7.8%
From 8 to 15 days
16.5%
From 16 days to a month
22.6%
23 months
20.0%
12.2%
From several months to a year
More than a year
7.0%
Do not remember, no answer
7.0%
Where would it be better to organise registration
of land parcels and title to immovable property?
% of all those polled
At the State Committee for Land
Resources and its divisions
5.2%
From 3 to 7 days
10.5%
14.6%
4.9%
4.9%
One day
Two day
18.1%
4.4%
6.3%
Overpaid
1.6%
17.7%
3.7%
Do not remember, no answer
7.3%
4.4%
3.4%
More than a year
Village
City
8.6%
6.4%
54.0%
2.0%
4.4%
4.8%
4.2%
4.0%
At the Ministry
of Justice and its divisions
17.0%
6.8%
At another state institution
combining those registers
19.4%
24.8%
I do not care about it
No answer
1.8%
Over 5,000 hryvnias
0.0%
11.9%
12.1%
No answer
0.8%
RAZUMKOV CENTRE
32.0%
% of those who had to execute documents
of title to land or immovable property
At the State Committee for Land
Resources and its divisions
At the Ministry
of Justice and its divisions
22.9%
10.1%
At another state institution
combining those registers
I do not care about it
No answer
25.6%
12.0%
29.4%
37
STATE REGISTRATION
SYSTEM IN UKRAINE:
EXPERT OPINIONS*
THE MAIN QUESTION LIES NOT AS MUCH
IN THE NUMBER OF INFORMATION SYSTEMS
AS IN THE PROCEDURE OF THEIR FILLING
AND OPERATION
Valeriy BEVZENKO,
National Deputy of Ukraine
On February 11, 2010, the Verkhovna Rada set out the Law “On
State Registration of Ownership Rights to Immovable Property and
Their Encumbrances” in a new wording. The Law took functions of
state registration of title to land parcels from the bodies in charge
of land resources and assigned them to judiciary bodies. This step
is now denounced by critics saying that separation of the functions
of state registration of land parcels and state registration of title to
them is inadmissible. Such criticism may be accepted only partially.
First of all, one should look at the reasons for the adoption
of that Law. It is no secret that the present procedure of land title
certification is extremely complex and gathered many corrupt
mechanisms. Sometimes the time gap between the decision of a
land parcel allotment and issue of a state deed for it is measured
in years. One of the reasons for that is that the bodies in charge of
land resources have long performed inorganic functions. Due to
their almost exceptional concentration on issuing the state deeds for
many years, activities of creation of a quality planning-cartographic
basis of the State Land Cadastre (SLC), development of norms in the
field of land management, land planning on the national and regional
levels were too slow or not performed at all.
The inability of the bodies of land resources to properly perform
functions of state registration of ownership rights to land parcels
is also witnessed by the fact that for more than five years, actually
nothing has been done to implement the Law in its previous wording.
Formally, it may be said that in that period, no title was registered
with full legitimacy. At that, it is absolutely inadmissible that neglect
of legislative requirements was actually authorised by the central
executive body in charge of land resources. Such situation would
persist even now, if said Law were not set out in the new wording.
We may long discuss which model of state registration of
ownership rights to land parcels is more impeccable, analyse foreign
experience, but one should agree that at present, separation of the
functions of registration of emergence of immovable property and
registration of the rights to it among several state bodies is the
most acceptable option for Ukraine. It will help promptly get off the
ground the process of creation of an information system containing
data of the rights to immovable property registered in the country.
One should keep in mind that the Ministry of Justice now keeps
more than a dozen state registers that were promptly created and
have been successfully operated for a long time. Beyond doubt, in
2012, the same will be said about State Register of ownership rights
to immovable property.
I would also like to say to the opponents of this position that
generally speaking, the main question in the field of land title
execution lies not as much in the number of information systems
engaged in such execution as in the procedure of their filling and
operation. It may be said for sure that in case of establishment of
a good mechanism of interaction between the SLC and the State
Register of ownership rights to immovable property ruling out
duplication of functions and providing for their prompts input
with the necessary information, exchange of that information and
creating no problems with the exercise of rights by the actors of land
relations, the question will be resolved by itself.
The mechanism of such interaction is proposed in the Bill
“On State Land Cadastre” registered in the Verkhovna Rada and in
general terms looks as follows.
The Bill suggests a change of the very essence of state
registration of a land parcel. Today, state registration of a land
parcel pursues two functions at a time: state authorisation of
emergence of a land parcel as an item of immovable property, and
state recognition of ownership right of a certain person to it. What
is bad about that system is that state registration of a land parcel
is performed at every transaction with it. As a result, execution of
deeds involving land parcels requires much time, which strongly
affects the rights and interests of actors of land relations.
That is why it is proposed to reduce the procedure of state
registration of a land parcel to mere input of data of the land parcel
features to the SLC. At that, by contrast to the present situation,
state registration of an emerging (“new”) land parcel during its
allotment out of the state/municipal lands will be performed not after
but before the authorised body’s decision of its allotment. It should
be noted that today, it is sometimes hard to understand the actual
location of the land parcel from the text of such decisions (only
the area and administrative-territorial unit are specified). In case of
adoption of the Bill, a land parcel may be allocated in ownership/
use only after designation of its boundaries in kind (on ground) and
assignment of the respective cadastral number to it.
After the state registration of a land parcel (or amendment of its
data), the body in charge of land resources is to send to the body
in charge of state registration of rights a cadastral plan of the land
parcel in an electronic format. The cadastral plan will be entered in
the Register’s section containing data of immovable property. In its
turn, the body in charge of ownership rights registration will after
registration of the right to land parcel ownership/use send information
of the registered right to the SLC. That information will be an element
of the Land Book data and be used for state control of land use and
protection, land management, collection of the land tax, etc. It should
be particularly stressed that such interaction is to be fully automated,
without interference of land parcel owners and users.
*
A remote Round-table was held on April 1-29, 2011. The panellist reports are presented in the alphabetic order. The remote Round-table participants included
co-authors of the Bill “On State Land Cadastre” (reg. No.8077 of February 4, 2011) Ukrainian MPs Bevzenko and Tkach.
38
EXPERT OPINIONS
In the result of the system introduction, state deeds of the right
of land parcel ownership will no longer be necessary. That is why
the Bill provides for their cancellation from 2013. Meanwhile, state
deeds issued before that time pursuant to Part 4, Article 3 of the Law
“On State Registration of Ownership Rights to Immovable Property”
will remain valid.
When drafting the Bill, we also took into account that people
did not want to part with stereotypes. An owner wants to have a
material proof of state recognition of his rights specifying the parcel
boundaries. Such document will be presented by an SLC extract of a
land parcel made of two parts. The first will contain all relevant data
of the land parcel, the second – the land parcel’s cadastral plan. Such
an extract may be obtained any time even after state registration of
the parcel. By contrast to the state deed, the information specified in
an extract will always be relevant. At that, to simplify the procedure
of execution of deeds involving land parcels, the functions of issue
of such extracts are vested not only in the bodies in charge of land
resources but also in notaries.
In its turn, the ownership right to a land parcel is proposed to
be certified with a certificate of state registration of a land parcel
issued by the body in charge of state registration of ownership rights
to immovable property. Years of experience of state registration of
other immovable property in Ukraine prove that the procedure of
such registration is rather simple and short.
There are fears that the proposed mechanism will make
individuals and legal entities to apply for legalisation of their right
to land parcels to two bodies. It should be noted that persons will
have to apply to those bodies only once – at the stage of the parcel
emergence (in most cases – at the stage of its free privatisation).
After that, all agreements of purchase and sale (lease, easement,
emphyteusis, superficies) will be made without the State Agency for
Land Resources involvement. That body will get the information it
needs from the State Registration Service by means of electronic
data exchange, not involving the land owner/user, who will pay no
extra fee for that.
On behalf of the Bill authors, I dare say: we are sure that the
proposed mechanism, if supported by Parliament, will be introduced.
What gives us hope is the fact that during the Bill development, for
the first time in many years, the State Agency for Land Resources
and the Ministry of Justice reached practical agreement about the
mechanisms of interaction between the two information systems

maintained by those bodies.
STATE LAND CADASTRE IN UKRAINE:
THE STATE AND PROSPECTS
Mykola KALYUZHNYI,
Deputy Head of the State
Agency for Land
Resources of Ukraine
Today, the subject of creation and maintenance of state
registration of land parcels and rights to them as an element of
the State Land Cadastre (SLC) is among the most disputable and
publicised. Such registration is important for the exercise of the state
function of ownership right protection, is a factor of guarantee of
such protection, official recognition and legal provision of the rights
of owners – individuals and legal entities – to immovable property.
Meanwhile, Ukraine, despite a relevant programme adopted
yet in 1997, in fact still has no integral automated system for
registration of rights to immovable property. One cannot say that
it was not created. For instance, in pursuance of that programme,
RAZUMKOV CENTRE
in the year of its approval, the State Land Cadastre Centre under
the State Committee for Land Resources was established, tasked
to create and maintain the SLC automated system and the land
registration system. For that: a system of registration bodies was
created, including 557 registration offices designed to serve 665
registration districts; registrars were trained; the offices were
provided with the necessary hardware and software; a corporate
network for data transmission from local registration offices to the
central office was built.
However, due to the lack of budget funding the Programme was
not fully implemented. It was to be funded at the expense of the land
tax proceeds transferred to a special budget account of the State
Committee for Land Resources, as envisaged by Article 21 of the
Law “On Payment for Land”. However, the Law on the state budget
used to suspend that Article every year.
Since in the present conditions, electronic format of land
cadastre databases alone can ensure effective registration of land
parcels and rights to them, the State Committee for Land Resources
developed and introduced uniform requirements to the structure,
content and format of a file for exchange of data on the results
of land planning activities in the electronic format on magnetic
carriers. Generally, the exchange file content is formed on the basis
of the data contained in hard documents drawn up by the effecters
and includes information: on the results and effecters of land
planning and valuation activities; topographic and geodetic works;
on actors of land relations and rights to land parcels; on restrictions
on the use of land parcels, cultivated areas, etc. Protection may
be enhanced with such elements as electronic digital signature
and data of the persons responsible for the exchange file data
generation.
In July, 2004, the Law “On State Registration of Ownership
Rights to Immovable Property and Their Limitations” was adopted.
It provided for the creation and operation of a single State Register
of rights in Ukraine relying on state accounting of land parcels of
all ownership forms and other immovable property located on
them, registration of ownership rights to immovable property, their
limitations and deeds concerning immovable property. Pursuant
to Article 5 of the Law, the State Committee for Land Resources
was appointed the State Register’s holder, the State Land Cadastre
Centre – its administrator.
However, although the Law laid down legal fundamentals
for operation of the system of registration of ownership rights to
immovable property, it was never put into life.
One of the reasons for that was presented by the long
interagency dispute of institutional subordination of the system
of registration of ownership rights to immovable property that
effectively obstructed implementation of the Law.
39
STATE REGISTRATION SYSTEM IN UKRAINE
With adoption of its new wording in February, 2010, the situation
with state registration of immovable property substantially changed,
since the Law provided that from January 1, 2012, the State Register
of ownership rights to immovable property would be maintained by
the Ministry of Justice.
The transfer of the immovable property title registration function
to the Ministry of Justice raised a number of questions concerning
the relations between the State Register of land parcels and the State
Register of ownership rights to immovable property. In particular, in
2011, regulatory documents on information exchange between those
systems, protection of their databases, etc. should be adopted.
Meanwhile, the State Committee for Land Resources (from
December, 2010 – the State Agency for Land Resources) continues
to improve SLC maintenance, including land parcel registration. In
particular, on January 1, 2011, the Government’s Resolutions “On
Approval of the Procedures of Keeping the Land Book and the Log
of State Registration of State Deeds of the Right of Ownership to
Land Parcel and the Right to Permanent Use of Land Parcel, Land
Lease Agreements” and “On Approval of Temporary Procedure
of Assignment of Cadastral Number to Land Parcel” entered into
effect, assigning the functions of registration of land parcels and
rights to them to territorial bodies of the State Committee for Land
Resources. In particular, the resolutions removed the collision in
the effective legislation concerning a mark on the state deed of land
parcel alienation and specified the procedure of cadastral number
assignment to land parcels.
In 2010, the State Committee for Land Resources was preparing
implementation of said resolutions, namely:
•
drafted governmental resolutions “On Introduction of
Amendments to Some Resolutions of the Cabinet of
Ministers of Ukraine” and “Some Issues of Provision of Paid
Services in the System of the State Committee for Land
Resources”, providing for substantial simplification of the
procedure of registration of land parcels and title to them
by the principle of “one stop”, harmonisation of the fee for
specific works (services) with the effective legislation on the
basis of economically sound indices;
•
performed inventory and transferred to territorial bodies of
land resources 103.8 thousand registration logs, 6.8 million
Land Books and 285 thousand sets of unissued state deeds
of ownership rights to land parcels;
•
trained 1,380 experts of territorial bodies of land resources in
charge of the state land register maintenance;
•
provided registrar workplaces in 645 territorial bodies of
the State Committee for Land Resources with the necessary
equipment and specialised software;
•
arranged specialised cartographic materials in the electronic
format: index cadastral maps of 57.4 thousand cadastral
areas and 379 thousand cadastral quarters and the primary
planning-cartographic basis for the whole of Ukraine’s
territory;
•
computer equipment of territorial bodies of the State
Committee for Land Resources was connected to the data
transmission network by telecommunications means.
As of January 1, 2011, the State Register of rights to land and
immovable property registered 15.92 million documents certifying
rights to land parcels. In that:
•
15.42 million state deeds of the right of land parcel ownership
issued to individuals; 77 thousand deeds issued to legal
entities;
•
423.9 thousand state deeds of the right to permanent use of
land parcel.
•
The State Land Cadastre’s automated system database
stores data of 10.01 million land parcels.
Today, territorial bodies of the State Agency for Land Resources
perform procedures of the state land register maintenance in line
with the effective legislation. What is especially important is that
40
the single system of cadastral number assignment to land parcels is
being improved, resting on index cadastral maps developed for the
whole of Ukraine’s territory.
Meanwhile, adoption of the Law “On State Land Cadastre”
remains on the agenda – the relevant bill is under review in the
Verkhovna Rada of Ukraine now.
According to the world experience summed up and spread by
the United Nations Economic Commission for Europe, services of
cadastral recording and registration of rights to immovable property
are of fundamental importance for the land and immovable property
market functioning. The publication “Land resources management
in the UN ECE region: development trends and main principles”
stresses that every country should create and ensure operation of
the system within its own social, economic and cultural environment,
since every country has its unique history and experience.
According to the Commission, the experience of creation of
national cadastral accounting systems witnesses, first, the advantage
of framework laws over laws overburdened with technical details.
Second, “the right to protection of private life” should be guaranteed.
Cadastral data should be protected and at the same time accessible
for users. The cadastre system should take into account the need to
ensure equilibrium between the right to information and the right to
personal data protection.
We hope that the review of the Bill “On State Land Cadastre” in
the Verkhovna Rada Committees and at plenary sittings will enable
drafting and adoption of a clear, brief and efficient law on the state

land cadastre development and maintenance.
STATE LAND CADASTRE AND REGISTRATION
OF TITLE TO IMMOVABLE PROPERTY:
JOINTLY OR SEPARATELY?
Volodymyr RYBAK,
Chairman of the Verkhovna
Rada of Ukraine Committee
for Construction, Urban
Development and Housing and
Utilities Sector and
Regional Policy
With emergence of the right of private land ownership, Ukraine
faced the uneasy task of creating the state land cadastre and the
system of state registration of rights to immovable property and their
encumbrances, necessary both for the state and for land owners.
Introduction of the modern land cadastre and registration
system is conditional upon the development and adoption of
the relevant legislative and regulatory acts relying on the good
world practice to establish legal, economic and organisational
fundamentals of the state land cadastre maintenance and state
registration of ownership and other rights in order to provide for
identification of land parcels and recognition and state protection of
title to them, create conditions for the immovable property market
operation, etc.
With the adoption of the Law “On State Registration of
Ownership Rights to Immovable Property and Their Encumbrances”
in 2004 it was expected that such registration would be performed
in the state land cadastre (SLC). This approach alone could enable
implementation of the model of “one stop” servicing individuals and
legal entities.
It was planned to create a single cadastre of land parcels and
immovable property, i.e., a model where one database contains
information both of land parcels and of buildings and structures
(their portions) located on them.
EXPERT OPINIONS
Implementation of that model would make it possible to escape
the problem of maintaining two parallel information systems,
namely: the SLC system (maintained by the State Committee for
Land Resources bodies), and information of buildings and structures
(offices of the Bureau of Technical Inventory, BTI), and concentrate
all data of land parcels and immovable property in one cadastral
system with an integrated database. The bulk of information of
buildings and structures was generated in course of cadastral
surveys and only part of information was provided by BTI offices.
CADASTRE AND REGISTRATION SYSTEM
IN UKRAINE: PROSPECTS OF COEXISTENCE
The necessity of such approach to the cadastral database
formation is conditioned by many factors, including the world
experience, since a land parcel and buildings and structures on it
make a single property complex as one item immovable property
and one (in most cases) legal object.
Instead, the Verkhovna Rada in February, 2010, adopted a
Law setting the Law “On State Registration of Ownership Rights to
Immovable Property and Their Encumbrances” in a new wording,
changing approaches to the system of state registration of title to
immovable property and their encumbrances, and henceforth, to the
SLC system creation.
Analysis of provisions of that Law (in the new wording) and
the Bill “On State Land Cadastre” registered in the Verkhovna Rada
prompts the following conclusions.
Bodies of the State Committee for Land Resources, as owners
of the State Register of Land Parcels, will provide for the state land
cadastre maintenance and state registration of land parcels, to
be certified with an extract from the State Land Cadastre of state
registration of a land parcel, containing all data of a land parcel
entered in the Land Book, including the land parcel cadastral plan.
Bodies of the Ministry of Justice, as the holder of the State
Register of Ownership Rights to Immovable Property, will maintain
the single state information registration system containing data
of rights to immovable property, their encumbrances, objects
and subjects of those rights, and registration of rights proper
will be certified with an extract of registered rights and/or their
encumbrances from the State Register of rights.
Such approach does not meet people’s interests, since an
individual first has to “bow” to the State Committee for Land
Resources bodies to get an extract of state registration of a land
parcel, and then to the Ministry of Justice bodies to have the right to
a land parcel certified and to get an extract of registration of title to
a land parcel.
It should also be noted that the cancellation of state deeds of the
right of ownership of land parcels envisaged by the Bill will inevitably
make people to apply for registration of their land parcels, for which,
state deeds have already been issued to them, to the State Register
of Land and the State Register of Rights.
I suggest that double registration of land parcels and the title to
them at the expense of citizen is inadmissible. If the state changes
the rules of registration of land parcels and ownership rights to such
land parcels, it must not harm citizens, on the contrary – creating
the system of SLC, state registration of land parcels and the State
Register of rights with new rules, one should care about protection

of the citizens’ right to land.
Roman TKACH,
National Deputy of Ukraine
Today, Ukraine found itself in a paradoxical situation whereby
private ownership is recognised in the country, immovable property
exists, both official and grey markets of immovable property flourish
but there is no cadastre or register to guarantee owner rights.
The state of the land cadastre maintenance is absolutely
unsatisfactory. The State Committee for Land Resources, trying to
introduce automated maintenance of the state land cadastre since
1993, unfortunately, did not succeed in that. It failed to perform the
programme of creation of an automated system of the state land
cadastre maintenance for 1998-2005.
The main task of the State Land Cadastre Centre was to perform
state registration of land parcels in the so-called State Register of
Lands, made up of two parts: the Log of registration of state deeds of
the right of ownership of land and the right of permanent use of land,
land lease agreements, and the Land Book, containing data of land
parcels. Contrary to its name – the State Register of Lands, today,
registered are not land parcels but documents certifying the right
of land parcel ownership or use. One should also keep in mind that
paper registers are kept by local bodies of the State Committee for
Land Resources, while electronic ones by the State Land Cadastre
(SLC) Centres. Data of the State Register of Lands are not public.
The automated SLC system is only in the making. Its elements
are localised (active only on the city and district level), not integrated
in one network, and contain information only about formalised land
parcels.
In terms of provision of land owner rights, registration in the
State Register of Lands is not decisive, does not guarantee the title
to a land parcel and is performed mainly for accounting of the land
size and distribution among owners.
Registration of rights to various items of immovable property
is performed by different bodies in different databases (rights to
land parcels are registered by bodies in charge of land resources;
ownership rights to immovable property located on land parcels –
by Bureaus of Technical Inventory; injunctions of alienation,
detachments and mortgage of immovable property – by notaries).
After the Law “On State Registration of Ownership Rights to
Immovable Property and Their Encumbrances” enters into force on
January 1, 2012, registration of all those rights in Ukraine is to be
performed in one register.
In such conditions, the importance of adoption of the Law
“On State Land Cadastre” can hardly be overestimated. Ukraine
remained the only the post-Soviet state where the land cadastre
is not legislatively regulated.1 At that, one should not forget that
adoption of the law does not mean creation of the land cadastre as
such yet.
The main goal of adoption of the Law on SLC is to create the
1
E.g., in Belarus, the state land cadastre has long been in use, thanks
to the World Bank’s assistance. Meanwhile, Ukraine cannot even use funds
of the World Bank’s special loan under the project “Rural Land Titling and
Cadastre Development” due to the absence of the relevant law.
RAZUMKOV CENTRE
41
STATE REGISTRATION SYSTEM IN UKRAINE
legal framework for the land cadastral activity, state land cadastre
maintenance, provide public access to the system, produce an
effective mechanism of state management of land resources,
rational use and protection of lands, development of the land market
and improvement of the land taxation system.
but the Bill provides a clear procedure of the systems’ interaction
and enables automatic data exchange without special requests or
inquiries. The practicability of such interaction will be ensured by
the uniform legal norms of the cadastre and the single register, and
interdependence of the two systems.
As we know, in February, 2011, a new Bill “On State Land
Cadastre” was submitted to Parliament. The Bill has been endorsed
by the concerned Committee, got positive conclusions of other
Committees and expert praises.
Proposing exactly such a system, we also took into account the
following.
When designing the bill concept, it was necessary to avoid
confrontation of positions on such basic norms as:
• arrangement of the cadastral registration system (i.e., a single
or two-component system);
• identification of the entities empowered to maintain the land
cadastre (i.e., only the bodies in charge of land resources, or,
maybe, the land cadastre maintenance on the local level should
be assigned to village, settlement, and city councils).
The Law on SLC passed by Parliament in 2007 solved those
issues in favour of creation of a two-component cadastre registration
system and engagement of basic local self-government bodies in the
land cadastre maintenance on the local level.
These were the main reasons for the President’s veto, since he
suggested that the land cadastre and the state register of ownership
rights to immovable property should make one system and the land
cadastre should be kept by one entity – a central executive body in
charge of land resources.
The new bill conceptually provided that the land cadastre was an
information system separated from the state register of ownership
rights to immovable property, and the function of the land cadastre
maintenance was vested in the bodies in charge of land resources.
Let us dwell upon the reasons for that stand in more detail, since
this is decisive for subject discussion.
Working on the Bill, we proceeded from the assumption that
the SLC should not contain a single register of ownership rights
to immovable property – since cadastres usually make focus
on physical properties of land (e.g., specifying the form, size,
coordinates, boundaries, valuation, soil quality, pollution, existing
structures, plantations, etc.), while title registration systems focus
on its legal properties (e.g., rights to parcels, third party claims to
them and encumbrances imposed).
For instance, the size, location, and owner (user) of a land parcel
remaining the same, its target purpose, pecuniary valuation and other
properties may often change. This especially refers to the pecuniary
valuation of a land parcel whose size depends on construction of new
infrastructure facilities (roads, communications, etc.) to (or near)
the parcel, accomplishment of the territory making its location more
beneficial, and the market situation. If those data are entered in the
State Register of Rights, it will need to be changed almost every
year. All this makes said register unstable, and the main thing – the
mentioned additional data do not influence the nature of the land
parcel owner (user) rights. And vice versa: land parcel properties
staying the same, its owner may change, which has no effect on the
land parcel but is important for the establishment of the title to it.
As we know, a few years ago, the Law “On State Registration of
Ownership Rights to Immovable Property and Their Encumbrances”
was adopted in Ukraine, whereby a single system of state
registration of ownership rights to land parcels and other immovable
property and their encumbrances was to be created within the
SLC. The Law also provided that the rights would be registered in
the SLC maintained by the central executive body in charge of land
resources. However, the Law norms remained on paper.
The State Committee for Land Resources, possessing all legal
tools to create the register of land parcels and the register of rights
to immovable property, has not managed to build an effective system,
while the Ministry of Justice has created several other subordinate
registers dealing with market circulation of property, including
immovable property: the Register of ownership rights to immovable
property, the Register of Legal Deeds, the Register of prohibitions of
alienation of immovable property, and the Mortgage Register.
The rationality of creation of a two-component system is also
witnessed by shrinking space for corrupt abuses. The thing is that if the
registration system were created as part of the land cadastre, the State
Committee for Land Resources would unilaterally perform functions of
transfer, execution, registration, control of use of all land parcels and
other immovable property, which in present-day conditions involves
strong corrupt risks for the system. Instead, division of those functions
between different bodies of state power will enable introduction of
mutual control to rule out abuses and mistakes, and will make the
systems more open thanks to alternative sources of information.
In view of the such circumstances and especially given the
urgent need of creation of the cadastre registration system,
introduction of a cadastre subordinate to the State Committee
for Land Resources and a single register of rights subordinate
to the Ministry of Justice seems the best solution. Quite possible,
in some 10 years those systems may be united, in line with the
current European trends, but now, creation of such united system is
impracticable and unrealistic.
I can only remind to the adherents of this idea that the rest of
Europe has been moving towards such union for decades, and
databases are being created and improved for centuries. Ukraine is
still at the initial stage of that movement, and the main task now is to
create a single system of registration of rights that would guarantee
those rights, and a basic database.
In case of adoption of the Bill on SLC in the proposed wording
before June, 2011, one may expect the beginning of operation
of those systems as soon as from 2012. The fact that the Bill’s
provisions were coordinated with both the State Committee for Land
Resources and the Ministry of Justice gives grounds to hope for true
interaction of those state agencies, for both the cadastre and the
registration system to work as interrelated automated systems. 
In other words, the cadastre guarantees the actual existence of
the subject of a deal, while the registration system guarantees the
rights to commence a deal.
Clear thing, both cadastres and registration systems may deal
with the same items – land parcels but the volume of identical
information in them is minimal – the cadastral number, the owner’s
name and the land parcel’s plan. The cadastre is to cover the whole
territory of the country, contain data of all lands and their properties,
while the registration system deals only with the items in circulation.
Hence, the land cadastre components have a different legal
nature and do not immediately deal with state registration of rights
The main problem posed by the coexistence of the cadastre and
the register is that those two systems are developing separately,
42
EXPERT OPINIONS
TO DECIDE ON THE OBJECTIVES
AND PRIORITIES OF THE STATE LAND POLICY
AND REGAIN PROFESSIONALISM OF STATE
LAND SERVICES
limits their ability to manage the land parcels they own and to defend
their rights.
In course of 20 years of the land reform, the social status of
village residents substantially deteriorated, adverse demographic
processes accelerated, the food security declined.
Meanwhile, it is already clear that the project “Issue of state
deeds of the right of land ownership in rural areas and development
of the cadastre system” intended for 2004-2012 and funded by the
World Bank will not be implemented in full.
Іhor YATSUK,
Deputy Secretary of the
National Security and Defence
Council of Ukraine
As a result, the country has not fully introduced the automated
system of the state land cadastre maintenance and the system of
maintenance the State Register of rights to immovable property
and their encumbrances. The SLC system that worked well in the
Soviet times even on paper carriers and ensured clear and perfect
accounting of all land parcels without exception and their quality was
actually destroyed. As a result, the state lost control of the national
land resources, which used to be one of priority tasks of the state
authorities of all levels and was strictly observed in the Soviet times.
The land reform in Ukraine was started yet with the Supreme
Council of the Ukrainian SSR Resolution of December 18, 1990 “On
Land Reform”, whereby all lands of the Ukrainian SSR were subject
to the land reform from March 15, 1991. The country entered the
stage of development or, rather, creation of new land relations. Since
then, dozens of regulatory acts have been adopted, including on the
state land cadastre (SLC) creation and its gradual automation. The
Programme of creation of an automated system of SLC maintenance
for 1998-2005 was approved. However, due to lack of funding, it has
never been fully implemented.
Attempts of introducing an automated system of SLC
maintenance neglecting the good practice gained before 1990 were
doomed to failure with such personnel of the land service.
Looking back, we see what a huge mistake we have made. One
may say for sure that reliable and full information on land resources
would have ensured weighty guaranteed proceeds to the state and
local budgets at the expense of the land fees, and bodies in charge
of land resources and local self-government bodies would have
provided for rational land use and protection, prompt regulation of
land relations, substantiation of the size of payment for the land,
reformation of land relations and introduction of a regulated land
market.
The disastrous state of land relations (e.g., in the case of
creation of an automated system of the land cadastre maintenance)
will persist as long as black is called white in this country, and the
key departments of the State Committee for Land Resources – in
particular, of the state cadastre – are led by radio physicists and
other persons who have no idea what is demanded form them, while
licensing and expert examination of land planning documentation is
performed by “specialists” without the required experience of work
at land planning organisations.
It seems that the Programme’s failure was not the last and the
greatest drawback in the present land policy. Today, as well as in
1990, the state is undecided about the end goal of the land reform,
objectives and priorities of the land policy.
Instead of development and pursuance of a considerate longterm state land policy, those persons will mainly fulfil current
assignments of leaders of the concerned political forces, in
particular, for venal redistribution of the most plum lands.
At some stage, redistribution of farming land through its
sharing was declared its goal. Today, it is clear that that goal was
wrong. Sharing resulted in emergence of great many land parcels
with the average size a bit more than 4 hectares, unfit for efficient
agriculture. The land structure optimisation remains obstructed by
the moratorium on alienation of the bulk of farming lands.
The unskilled provisional heads of the land bodies do not see
land planning as a tool of implementation of the state land policy,
and the state land cadastre only gives them convenient and safe
means for corrupt deals.
Apparently, redistribution of land as such (through privatisation,
sharing, etc.) cannot be the reform’s goal. Instead, the main goal
should have been formulated as enhancement of the efficiency of
land use and protection.
Therefore, reformation of ownership relations in agriculture
produced no positive results, and the key elements of the production
potential – land, fixed assets, labour resources – suffered deep
ruination.
Recently, the professionalism of the state land institutes’
personnel has substantially deteriorated in connection with political
instability in the country. For instance, over the past four years the
state land service has had five heads. The HR patchwork of arbitrary
replacements of highly professional management of state bodies in
charge of land resources is observed not only in the capital but also
in the regions.
The situation in the field of land relations, land use, land
planning and land protection remains complicated and requires
urgent improvement. It is necessary:
•
to complete formation of law-based land ownership relations;
•
to substantially enhance the efficiency of state management
of land resources and land use, first of all, by formulating the
objectives and priorities of the state land policy, the goal of
land relations in the country;
•
to adopt a comprehensive approach to modernisation and
expansion of the legislative framework in the field of land
relations with clear forward-looking planning, in particular,
to coordinate the land law with other spheres of legislation
(civil, urban planning, etc.);
•
to introduce advanced technical means in the form of
computer systems for state land cadastre maintenance, state
registration of land parcels and immovable property going
with them, and the rights to them.
The legislative framework for cancellation of the moratorium on
sale of farming land and creation of a fully-fledged land market has
not been formed even now.
Land agencies free of financial and legal liabilities dare behave
increasingly venally. This, in turn, facilitates spread of corruption.
Furthermore, bodies in charge of land resources several times
unreasonably changed the forms of the title documents and the
procedure of state land record maintenance, again, mainly at the
expense of citizens’ pockets.
The present system of registration of documents of title to land
parcels causes dissatisfaction in the regions, leads to spread of
cases of violation of constitutional rights and interests of citizens,
RAZUMKOV CENTRE
And most of all, the state land and associated services should
regain the adequate professional level, introduce principles
of responsibility and professional honour in their activity, bar
involvement in corrupt schemes and deals.

43
A SYSTEM OF CADASTRE, OR A
REGISTER OF TITLE? WHAT WE
ARE CREATING, AND FOR WHOM
Serhiy KUBAKH,
Manager of the World Bank project
“Rural Land Titling and Cadastre Development”
F
or the last 10 years, the system of recording of immovable property and the system of title registration
in Ukraine were developing independent of each other, staying in the competences of different levels of
governance and different agencies. Such structure does not meet the goals of development of the immovable property market and requires huge unreasonable expenses from both the state and immovable property
owners.
In 2004, the Law “On State Registration of Property Rights to Immovable Property and Their Limitations”
united the system of recording of buildings, premises, and land plots, the system of registration of title, and the
cartographic-geodetic component. However, due to inter-agency disputes, the Law was never implemented,
and in February 2010 the Verkhovna Rada made amendments to it, providing for registration of title on the
basis of cadastre maps. At that, the functions of state registration of land plots are vested in territorial bodies
in charge of land resources, and of registration of title to immovable property – in justice agencies.1
As a result, a paradoxical situation arose: despite the development of civil turnover of immovable property,
ownership rights to many immovable property facilities are still not registered. The Ukrainian state wastes time
on discussions, and neglecting the national legislation and changing priorities, compromises its reputation in
the eyes of own citizens and the international community.
Present-day EU practice of creation of
cadastre registration systems
Land and real estate records in each country are kept
since the dawn of land law relations, but the cadastre
forms differ dependent on the national economic situation.
However, most European countries where the system of
immovable property records and registration was created
not long ago opted for the creation of a single system,
since exactly such systems are the most efficient for the
time being. Other countries resort to cadastre reforms
to bring cadastre registration systems to uniform
standards, including, in particular:
• maintenance of a system of registration of
immovable property rights on the basis of records
of land plots (a land plot and real estate are viewed
as one piece of immovable property);
•
the title to land plots and immovable property is
registered in the same Register of title;
• the title is registered and cadastre maps are kept by
the same institution;
• registration of title is an administrative function
(state registration of title should be separated from
judicial and/or notary bodies);
• the system’s services are mainly focused on the
user;
• the system of registration of title should be selfrepaying.
All modern systems of registers are created on
the basis of an index cadastre map. The cartographic
technology used to make a cadastre may include up to 250
features of a land plot, providing the most cost-effective
1
This ran contrary to the World Bank requirements, since the extension of its loan for the Rural Land Titling and Cadastre Development project was
conditioned by introduction of a single cadastre registration system in Ukraine, whereby the land cadastre maintenance and registration of the rights to land and
other immovable property were to be vested in the same body under uniform rules.
44
A SYSTEM OF CADASTRE, OR A REGISTER OF TITLE? WHAT WE ARE CREATING, AND FOR WHOM
and accurate means for immovable property description.
Electronic data of the state land cadastre provide a
platform for successful inter-agency cooperation at
keeping urban, forest, water and other sectoral cadastres.
Taken together, they produce a full and clear picture of
the country’s resources, promote good governance and
control.
So, what should the cadastre registration system in
Ukraine look like, to meet present-day requirements
and principles of operation of similar systems in
developed economies?
The main criterion arouses no doubts: it should
be efficient, i.e., accurate and reliable, focused on the
EU REQUIREMENTS
• a system for the identification and registration of payment
The EU has no special legislation on registration of title to
immovable property, neither does it have a model law or a set
entitlements;
of guiding principles of creation and operation of the system
• aid applications;
of registration of title to immovable property. However, some
• an integrated control system;
provisions may be interpreted as kind of minimum standards of
creation of functional land markets. For instance, discussing the
• a single system to record the identity of each farmer who
conditions of new countries’ admission to the EU, the Council of
submits an aid application.
Europe notes:
Therefore, the EU member states should introduce a land
Membership requires that the candidate country has
parcel identification system (LPIS) as an element of IACS in the
achieved stability of institutions guaranteeing democracy,
way chosen in their discretion. The technical requirements to LPIS
the rule of law, human rights and respect for and protection
are as follows:
of minorities, the existence of a functioning market
economy as well as the capacity to cope with competitive
• information is to contain the identification number of the plot,
pressure and market forces within the Union. Membership
its area and use;
presupposes the candidate’s ability to take on the
•
it should consistently cover the area under a single system;
obligations of membership including adherence to the aims
2
• cartographic accuracy needs to be measured at a scale not
of political, economic and monetary union.
less than 1:10 000 with the maximum error of 1 metre afield
Observers commenting on that provision add to it the point of
on the basis of orthophotomaps;
building functional (effective) land markets:
• the system and its connection with the integrated system (GIS
One of the key requirements of the… EU for accession
Integrated Automated Control System) database are to ensure
of Central European countries… is the establishment
interconnection between graphic and digital databases and
of free market economies which parallel the economies
efficient use of graphic information in all procedures: mass
in Western Europe based on the adoption of the Acquis
spread of information among the population, administrative
Communautaire… Central to this objective is the
verifications with immediate transfer of all information, its use
privatisation of lands and the establishment of efficient land
by local bodies or on-site inspectors or operators of space
markets .3
positioning control devices;
Therefore, it may be assumed that correspondence to the EU
•
the system should be updated regularly: at least once a
legislation means that a national system of registration of title
year, on the basis of information obtained in the result of
to immovable property is introduces so as not to obstruct the
verification. Orthophotographs should be updated to ensure
immovable property market operation.
continuity in the general information quality. Generally, a fiveThe EU legislation contains more norms on creation of land
year cycle is set out, but actual updating ranges from three
cadastres, focusing on farming land. For instance, the member
to seven or more years, dependent on the land use stability.
states are to introduce geo-information systems on the basis of
Therefore, apart from digital identification of land plots, the
orthophotomaps to provide the basis for strict control of subsidies
member states should prepare graphic identification of plots now,
to agricultural producers, prepare the relevant register with the
and the system should be automated.
list of locations, features and applicable rights,4 introduce the
Integrated Administration and Control System (IACS.)5 Pursuant
At present, it remains unclear if the above requirements will
to Article 4 of the Council of Europe Regulation No.3508/92 (for
apply to the new EU member states not engaged in CAP. However,
Central European countries):
if a member state cannot introduce a land cadastre meeting the
European requirements, its agricultural producers will probably not
• the alphanumeric identification system for agricultural
be entitled to direct support under CAP.
parcels shall be established on the basis of land registry
maps and documents, other cartographic references or of
Note. The above-mentioned cadastre reforms and formulation
aerial photographs or satellite pictures or other equivalent
of requirements to modern cadastre registration systems take
supporting references or on the basis of more than one of
place in line with the Recommendations “Cadastre 2014. A vision
these elements.
for a future cadastral system”, worked out by a working group
of International Federation of Surveyors (FIG) Commission 7 “A
In 2003, the Council of Europe Regulation 1782/2003 amended
vision of the cadastre”. The recommendations are continuously
that provision by adding to that requirement the list of elements to
amended and updated, witnessing that with the development of
be included in IACS. Specifically (Article 18 of the Regulation):
information technologies, methods of remote land probing and
• a computerised database;
global positioning, the cadastre and registration system should be
improved.
• an identification system for agricultural parcels;
2
European Council, Conclusions of the Presidency. – Copenhagen, June 1993, SN180/1/93 REV 1, p.14.
T. Bogaerts, I.P. Williamson & E.M. Fendel, The Role of Land Administration in the Accession of Central European Countries to the European Union, (2001).
R. Prosterman & L. Rolfes, Review of the Legal Basis for Agricultural Land Markets in Lithuania, Poland and Romania, in Structural Change in the Farming
Sectors of Central and Eastern Europe, Second EU Accession Workshop in the Rural Sector, Warsaw, Poland, June 27-29, 1999.
4
J.M. Perez, Cadastre and the Reform of European Union’s Common Agricultural Policy: Implementation of the SIGPAC, Castastro 161, 162 (July 2005).
5
IACS is used for implementation of the EU Common Agricultural Policy (CAP). CAP covers many programmes of subsidies to agricultural producers. Some
programmes envisage provision of direct assistance to producers on the basis of the cultivated area. IACS rests on the idea that the schemes/plans based on the
area should involve the land plot identification system. See: Id.at 1656 Id.at 168.
3
RAZUMKOV CENTRE
45
user, provide for his utmost convenience, promptness
of servicing at minimum cost and, the main thing,
trust-worthy.
As regards the identification of the cadastre system and
title register development strategy, one should begin with
identification of the end goals of creation of the immovable
property title registration system, and the goal of the State
Land Cadastre. Only then can we discuss if the Ukrainian
laws and bills meet them (and to what extent).
Discussion of the final objectives can also help
distinguish the goals of the Law on registration of rights
to immovable property from the goals of the bill on the
land cadastre. Should there be two systems? If so, how
to harmonise those systems to avoid duplication of efforts
either of state bodies, or of private persons?
Registration of title to immovable property
First, one should ask why the state is interested in
registration of title to immovable property. Is its main
goal to serve the interests of registered right owners and
individuals eager to make transactions with immovable
property? Will registration of title help the state to control
relations in the field of immovable property or plan
territorial development?
In developed countries, registration of title to
immovable property serves two interrelated tasks: (1)
defends the rights of individuals to immovable property
(rights of ownership, pledge and lease), and (2) helps
during transfer of title to immovable property through
sale, lease or inheritance, as well as the emergence of
mortgage rights.
Trade in immovable property is deemed useful both for
individual citizens and entire society, since it enables transfer
of immovable property to the persons willing and ready
to invest in its improvement. Naturally, trade leads to an
increase in the immovable property value, and immovable
property becomes a reliable place to invest savings.
With the development of the immovable property
market, banks get an opportunity to set the market value
of immovable property and accept immovable property
as mortgage against loans. In that way owners may use
immovable property as mortgage to acquire materials for
its improvement (so raising its value), or may invest those
funds in other production activity, which is especially
important in agriculture. Mortgage lending performed
in a community thousands of times for years can lead
to the general increase in the living standards. This
cannot be achieved without active and reliable markets
of immovable property, and those markets depend on a
reliable and accessible system of registration of title to
immovable property.6
Therefore, protection of ownership and other rights
promote trade in and mortgage of immovable property.
So, the title registration system is at least to provide the
following capabilities:
1) to identify land plot location and boundaries;
2) to identify the immovable property owner;
3) to identify the title to immovable property.7
Established procedures of registration of title to
immovable property may be developed to make the
process of transfer of title (or creation of new property
because of property division or merger) cumbersome
and expensive, or relatively simple and affordable. That
is why the procedure design can speed up or slow down
trade in immovable property. An efficient registration
system should have the following features:8
• simplicity. The system should be simple in operation
and easily understood by the public; it should have no
unimportant information. People should clearly realise
what for the system exists and what benefits it gives;
• accuracy. It is important that the system contains
accurate information and that the information is
protected against unauthorised interference. An
inaccurate register may pose more problems than
it can resolve;
• expedition. The system should be able to promptly
process transactions. If it enables officials to delay
transaction processing, this may undermine its
public utility. More than that, a system enabling
delay of input of a large body of transactions and at
the same time leaving the officials an opportunity
to speed up handling of some transactions will give
room for corrupt acts;
• cheapness. The system should be affordable and rest
on the living standard of the population it serves. If
registration processes are unreasonably costly, people
will try to avoid formal registration of transfer of
property rights, opting for informal methods whose
application will expose the population to substantial
risks which it may even not be able to assess, but in the
result, a register of rights may be created that will not
present the actual ownership of immovable property;
• suitability to the circumstances. The system should
meet the national conditions. It is inadmissible
to implement a smart multifunctional database of
immovable property in the environment where the
national budget and the system users cannot afford
to pay for its creation and maintenance. It is closely
related with the issue of simplicity but also with
that of measurement accuracy;
• security. The system should guarantee that the
registered owner is the legitimate owner of the
land. This principle is not inherent in the system
of registration of documents/deeds on the basis of
which the title to immovable property is legally
transferred. In the system of registration of title to
property, the register’s tasks include verification
of the presented documents for their sufficiency
for the transfer of title to immovable property
and the decision that registration is necessary and
sufficient for establishment and termination of title
Registration of title to immovable property gives
the population many benefits – and it is the system used
elsewhere in Europe. Its main drawback is that its creation
is very costly, since it relies on measurement and mapping
of all plot boundaries (at least the boundaries of all plots
staying in private ownership) and settlement of disputes
about the title to immovable property.
6
To be sure, an efficient system of registration of title to land by itself will not create an immovable property market, or a mortgage market. Individual trade
in immovable property and financing of those transactions by lenders are influenced by the general level of the economy, preferences of citizens and lenders,
possibilities for other investments, etc. However, an efficient system of registration of title to immovable property is really needed for full-scale development of
the immovable property market.
7
S.R. Simpson, Land Law and Registration 16-17 (1976).
8
For the list, adapted and amended by Simpson, see id. at 17-18.
46
Land cadastre
“Land cadastre” – the terms is used to denominate
different types of land description systems. Land
cadastres mainly contain the description of land plot
location and boundaries but may also carry information
about the land quality, land use and immovable property
taxation. As a rule, they contain some data of the rights of
land plot and constructions’ owners, but that information
is mainly used for land plot identification rather than the
complete description of rights. Where the land cadastre
fully integrates the system of registration of title to
immovable property, the term “legal cadastre” is used to
describe the data contained in the system’s part used for
the title registration.
The main question here is how the establishment
and maintenance of the land cadastre will be funded.
What part of that work will the state subsidise from
the budget, and how much will land owners pay? The
greatest costs are associated with identification of plot
locations, measurement of plot boundaries, identification
of constructions’ location and size, development of land
plot and constructions’ plans, as well as certification and
registration of title to land plots not entered in the register
of title to immovable property yet. As soon as the owner’s
title to a land plot or constructions is registered in the
system, further transactions with land and constructions
should not be expensive. However, the initial work at
generation and collection of spatial and legal information
about land plots and immovable property will be long and
expensive. No country managed to avoid this.
It would be useful to examine the cost of creation
and maintenance of separate elements of the state land
cadastre. In particular, to compare (1) the costs related
with data required by owners of title to immovable
property and persons buying the title to immovable
property, and (2) the costs related with data required by
state bodies.
The experience of cadastre operation proves that
the bureaucratic community tends to collect and update
unneeded information. Officials can easily order data
collection since the relevant costs are born by others,
especially the population. Every inquiry means a burden
on the population, and the general effect from such
inquiries may be ruinous. Collection of information gives
a kind of work to officials, along with the sense of their
authority. And as long as the population has to buy such
data to present them to officials, the demand to present
them will give extra work to such experts, sometimes
satisfied with close relations with officers requesting
information. That is why people tend to sceptically view
any provisions regimenting presentation of information
and demand substantiation of grounds for its collection.
Hence, the cadastre is to provide the public
with accurate and reliable data of land plots and
immovable property, but the issue of the cadastre
maintenance funding remains vital and topical since
no cadastre system can work for free or only at the
expense of payment for title registration.
Ukrainian choice
After the new Land Code entered into effect (on
January 1, 2002), disputes arose between the Ministry
of Justice and then State Committee for Land Resources
as to which agency should care about registration of
land ownership rights. On the one hand, the advantages
RAZUMKOV CENTRE
of creating a single body in charge of the cadastre and
registration were advocated, on the other that approach
was criticised, and it was proposed to separate those
functions between different organisations. Such disputes
should be solved by laws drawing the line in discussions.
Finally, it was decided to create two systems: of
registration of title to immovable property, and of the land
cadastre, to be maintained, respectively, by the Ministry
of Justice and the State Agency for Land Resources.
However, creation of an efficient cadastre and
registration system means a long-term state investment
in the national economy infrastructure development.
It does not matter who keeps registers. What matters is
how to ensure the system integrity in the conditions
of engagement of different institutions, provide for a
high level of inter-agency cooperation, formalise data
exchange, unite databases, integrate the accumulated
information and avoid duplication.
The question is not even how much shame Ukraine
will bring on itself if it fails to introduce an efficient
cadastre system. It will nullify actually everything that
has been done over the past almost 11 years. A state
unwilling to play by accepted rules, neglecting principles
of economic coexistence, will hardly be adequately
viewed by the international business community. The
national investment policy will come to naught due to the
absence of tools securing investor rights.
The new wording of the Law “On Registration of
Ownership Rights to Immovable Property and Their
Encumbrances” (2010) specified that registration of title
under the procedure it established would be started from
January 1, 2012. That is, till that time, everything will
stay the way it is now.
However, time alone will show if a new system
of registration of rights will be implemented, or the
old system will be called new, or that deadline will be
postponed, and if it will be efficient in terms of the above
criteria. One thing is clear – to make a system, one should
have a clear plan of action and resources, not change the
strategy and priorities of achievement of the set goals.
Since no optimal decision on creation of a single
cadastre registration system was taken, one thing is
obvious: without an efficient cadastre system there can be
no efficient title registration system, and without efficient
governance and exchange of data between those systems,
there will be no state guarantees.
So, a lean compromise is better than a fat lawsuit – a
compromise will make it possible to get the matter of the
ground and come to action. However, a positive result may
be expected if those systems are efficient. To ensure their
efficiency, the Government tasked the Ministry of Justice
and the State Agency for Land Resources to coordinate
efforts, their key element being, according to the World
Bank recommendation, exchange of information between
the systems. Those efforts should be started with adoption
of the Law “On State Land Cadastre” recently submitted
to Parliament, since that Law will finally lay down the
legislative framework of the most important element of
the land market infrastructure – the land cadastre.
So, today, the land cadastre concept and fate
depend on concerted and coordinated efforts of
different agencies and, most of all, the political
will. It is important that the search of a legislative
compromise does not distort the land cadastre
functions and goals.
47
PROSPECTS OF STATE
LAND CADASTRE
DEVELOPMENT IN UKRAINE
Andriy MARTYN,
Doctoral candidate at the National University
of Bio-Resources and Use of Nature of Ukraine
C
reation of an efficient land cadastre system is one of the key preconditions for steady development of land
market relations, since exactly the land cadastre performs the task of accounting all land property units,
on its basis the title to land parcels is effectively guaranteed, in the cadastre, land is evaluated for fiscal and
regulatory purposes.
However, at present, Ukraine has no integral land cadastre system providing an effective basis for regulation of the land relations, property valuation, registration of title to immovable property, monitoring and control
in the field of use of nature, etc. Next to all cadastre elements are formed with serious difficulties, and the
cadastre itself cannot be seen as a source of necessary, reliable and timely data on land resources.
That is why it makes sense to consider the key problems of creation of the state land cadastre and formulate some proposals for their solution.
Commercialisation of land cadastre
procedures
Land cadastre procedures involving maintenance of
the state land register are performed by the State Land
Cadastre Centre and its branches in the regions. The
purpose of that commercial entity is to make profit. As a
result, land cadastre procedures involving maintenance
of the state land cadastre are commercialised and
actually do not accomplish socially useful functions,
being a burden for actors of land relations.
That is why the main task of the state land cadastre
(hereinafter – SLC) development should be to bar
commercial institutions from cadastral procedures
and conceptually refocus cadastral activity from
profit-making to self-repayment, and to meet consumer
demand for information on cadastral items.
At the same time, it is highly important to ensure
publicity and accessibility of cadastral plans and maps,
as well as orthophotoplans and index maps created
within the framework of the project “Issue of state
deeds of the right of land ownership in rural areas and
development of the cadastre system”,1 on the Internet –
this will be the first step towards regular enhancement
of the cadastral data quality and openness, since the
long-lasting secrecy of cadastral data may be seen as
one of the main preconditions for stockpiling untrue or
unreliable geospatial data on land parcels in cadastral
databases.2
Discretion of cadastral data
A serious drawback of the present-day land cadastre
system is presented by the discretion of cadastral
data: as of the beginning of 2011, the state land register
contains semantic and cartographic features of only
some 11.7 million land parcels, or 46.6% of their total
number (25.1 million). Therefore, the present land
cadastre has signs of discretion – accounted are not
1
As of February 1, 2011, within the project framework aerial photography was performed on the area of 457.6 thousand km2 and orthophotomaps were
created: to scale 1:10,000 – 380.1 thousand km2; 1:5,000 – 43.6 thousand km2; 1:2,000 – 7,300 km2. An index cadastral map of 186.3 thousand km2 was
developed.
2
Only after the issue of the Security Service of Ukraine Order “On Approval of Amendments to the List of Data Constituting State Secret” No.755 of November
25, 2009, secrecy procedures with respect to geospatial information and accurate planning-cartographic materials were finally cancelled in Ukraine.
48
all lands within Ukraine’s borders but only some land
parcels. In fact, despite the formation of a new system
of land relations in Ukraine, resting on the variety of
land ownership forms, more than half of land parcels
remains a kind of terra incognita for SLC.
Registration of boundaries of every land parcel is
performed irrespective of other land parcels. The axiom
that a boundary always delimits two land parcels and
presents their common attribute is actually ignored,
every land parcel in Ukraine now has its own boundary,
recorded and registered irrespective of the boundaries of
adjacent land estates and tenures, and the requirement
of “absence of overlapping and gaps” between adjacent
parcels is met only for a limited number of parcels,
data of which are collected in the State Land Cadastre
Centre’s database.
The complete uncertainty of the legal status of the
data of the so-called SLC automated system (SLC AS)
at the present stage does not allow us to deem “checks”
performed by said Centre legally valid.
Therefore, an important technical task is to
move from discretion to continuity and integrity
of geospatial data in SLC. Mutual coordination of
boundaries of adjacent land parcels, administrativeterritorial units, and cadastral areas and quarters should
become a fundamental principle of the cadastral system
creation, not a “desired but unnecessary” result of its
operation.
Unaccomplished land inventory
Fundamental improvement of the land cadastre data
quality, and a decrease of the conflict potential of land
relations in Ukraine are sometimes associated with land
inventory, intended to answer the question about the
present state of land estates and land tenures. Exactly
the land inventory is hoped to raise land relations to a
qualitatively new level, free of a number of systemic
drawbacks of the present system of land resources
management dealing with recognition and guarantee of
rights to land.
At the dawn of the land reform, land inventory
was seen as the way to obtain primary data for land
parcel allocation to citizens and keeping land records.3
In other words, the inventory was to provide for the
creation of the “initial land cadastre”, making the basis
for new cadastral plans (maps) with all cadastral items.
However, complete land inventory has never been
accomplished, first of all due to insufficient budget
funding of the land reform measures in early 1990s.
This fact, along with repeated attempts of
administrative-command pushing of land privatisation,4
resulted in incompleteness and inaccuracy of SLC
data. In fact, land parcels “appear” in the land cadastre
following cadastral survey, involving fixation of their
actual boundaries in kind (on ground).
Therefore, continuity of land cadastre records can
be provided only through regular inventory of stateowned land, in the present conditions called to ensure:
1) completeness of SLC data of all land parcels,
cadastral areas and quarters, administrative-territorial
units within Ukraine’s borders;
2) check of authenticity (validation) of the available
semantic and cartographic data of land parcels, for
which, the state has registered documents of title;
3) detection and registration of limitations on use of
lands (territorial areas) around existing determinative
sites.
At that, the regulatory-legal basis of land
inventory in Ukraine is highly flawed. For instance,
the respective legislative norms are contained only in
Article 35 of the Law “On Land Management” (2003).
The key requirements to land cadastre inventory of lands
in populated localities (cities, townships, villages) as an
integral part of basic information for SLC maintenance
are specified in the Regulations on land cadastre
inventory of lands of populated localities approved by
the State Committee for Land Resources Order No.85 of
August 26, 1997. At present, said regulations no longer
fully meet the effective legislation requirements.
In fact, land cadastre data containing information
on boundaries of land parcels, cultivated land,
functional and territorial zones, cadastral areas and
quarters, administrative-territorial units, are to pass the
legislatively provided procedure of authenticity check.
The present Ukrainian legislation does not specify the
procedures enabling large-scale correction of mistakes
in SLC, including in course of the land inventory.
At that, one should keep in mind that “adjustment”
of spatial features of land parcels involves not only
correction of land parcel registration data but also
reissuance of “incorrect” documents of title, adjustment
of land parcel indices, reimbursement of losses to land
owners and users, and prosecution of the persons who
previously admitted inaccuracies in land planning,
topographic and geodetic operations.
Without legislative regulation of land inventory
procedures, mistakes in SLC may be corrected by
3
See: Verkhovna Rada of the Ukrainian SSR Resolution “On Land Reform” No.563 of December 18, 1990 (Items 3, 4); Presidium of the Verkhovna Rada of
Ukraine Resolution “On Performance of Land Inventory in Suburban Areas of Cities” No.743-PV of December 4, 1995.
4
See, e.g.: Verkhovna Rada of Ukraine Resolution “On Acceleration of the Land Reform and Privatisation of Land” No.2200 of March 13, 1992; CMU Decree
“On Privatisation of Land Parcels” No.15 of December 26, 1992; President of Ukraine Decree “On Immediate Measures at Acceleration of the Land Reform in
the Field of Agricultural Production” No.666 of November 10, 1994; CMU Resolution “Some Issues of Exercise of the Right to Land Ownership by Citizens of
Ukraine” No.844 of August 5, 2009.
RAZUMKOV CENTRE
49
judicial procedure involving forensic examination,
although it should also be noted that the Land Code
(2001) provides a specific procedure (almost never
applied in practice) of extrajudicial settlement of
disputes about boundaries of land parcels owned or
used by individuals, local self-government bodies and
executive bodies in charge of land resources.
Survey, topographic and geodetic operations during
land inventory should be aimed solely at identification
of coordinates of land planning sites’ locations, their
boundaries and size.5 One should keep in mind that
physical conduct of any works (including topographic
and geodetic) on land parcels without their owners’
(users’) consent should be viewed as a breach of their
right to inviolability of residence or other possession.
Therefore, total land inventory, including of land
parcels staying in private ownership/use, can be made
today solely using information obtained by the Earth
remote probing means.
Problem of boundaries of administrativeterritorial units
The problem of “legalisation” of the existing
Ukrainian administrative-territorial system deserves
special mention. There are mass “territorial claims” of
populated localities to surrounding areas and vice versa,
territorial disputes between districts and regions. That
is why “binding” cadastral units to the administrativeterritorial system makes cadastre-registration system
a “hostage” to territorial conflicts between local state
administrations and local self-government bodies.
Some 4 million hectares of territorial sea stay beyond
cadastral zoning, while by its legal regime, it falls
within Ukraine’s territory.
One should realise that the problem of legalisation
of the existing boundaries of administrative-territorial
units in most cases involves a conflict of interests that
cannot be effectively solves by various commissions
and conciliatory bodies. That is why there is an urgent
need to work out the legislation enabling settlement
of “territorial conflicts” and ultimate delineation of
administrative-territorial units, i.e., strict delimitation
of jurisdictions of territorial governance bodies
(boundaries of villages, townships, cities, city
districts, districts, regions, the Autonomous Republic
of Crimea.)6 An authorised executive body must be
appointed to independently perform the arbitration
function in territorial disputes and take the final decision
on boundaries between administrative-territorial units.
Maintenance form
Despite the awareness that in the present conditions,
only electronic land cadastre databases can ensure
efficient processing and use of data on land resources,
and in spite of the drive to computerisation and
automation of land cadastre procedures, the land
cadastre in Ukraine remains “on paper”. Automation
of SLC maintenance is actually barred. The main reason
for that lies in the above-mentioned total uncertainty of
the legal status of land cadastre data “in the electronic
form”: at present, no legislative act in Ukraine specifies
the legal mode of АС SLC data and methods of their
use in the law-enforcement practice.
Data in “exchange files” (the basic information, on
the basis of which the SLC database is formed) with
the results of the accomplished land planning works
accumulated on a paid basis by the State Land Cadastre
Centre’s units since 2003 are legally void since, despite
the adoption of the Laws “On Electronic Documents
and Electronic Document Circulation” and “On
Electronic Digital Signature” in 2003, exchange files
never had digital signatures or a documentary status.
Furthermore, establishment of boundaries of
cadastral areas and quarters in Ukraine was rather
irregular and chaotic. Only on January 1, 2011,
the Government’s Resolution “On Identification of
Immovable Property Items for State Registration
of Rights to Them” No.1117 of December 8, 2010,
ultimately introduced the Procedure of drawing and
approval of index cadastral maps and cadastral plans
of land parcels, requirements to their execution. That
regulatory document set rather general requirements
to the creation of index cadastral maps (plans), in
particular, envisaged different procedures of their
creation in the electronic and paper formats. The fate
of the present cadastral zoning remains unclear, since,
according to the State Committee for Land Resources,
as of 2008, 56.5 thousand cadastral areas and 378
thousand quarters had been singled out in Ukraine,
and in the previous years, those cadastral items were
generated on the basis of recommendations given by the
State Committee for Land Resources.
Production of cadastral plans involves serious
difficulties conditioned by the controversy of the
effective regulatory-legal framework. In fact, in Ukraine
it has long been impossible to produce a cadastral plan
of a land parcel fully meeting the requirements of
regulatory-legal acts.
Land and branch cadastres
The land cadastre should provide the fullyfledged basis for branch cadastres (urban, forest,
water, of natural curative resources, natural resort
territories, fauna and flora, territories and sites of
Ukraine’s natural preserve stock), as well as the
State Register of immovable monuments of Ukraine.
5
The main regulatory document on cadastral survey in Ukraine is presented by the Main Department of Geodesy, Cartography and Cadastre of Ukraine Order
“On Approval of Instruction on Topographic Survey to Scale 1:5,000, 1:2,000, 1:1,000 and 1:500 (HKNTA-2.04-02-97)” No.56 of April 9, 1998.
6
Here, we intentionally do not touch upon the problem of administrative-territorial reform.
50
However, at present, one should note complete
“independence” of those information resources, kept
on the agency basis and not integrated into a single
information system.
The land cadastre system should incorporate data
of environmental monitoring, monitoring of land,
monitoring of soil of farming lands, and monitoring
of irrigated and drained lands. Technologies of remote
Earth probing data processing combined with land
tenure and land use registration data can produce a
system for automated detection of violations in the
field of use of nature and performance of appropriate
state control measures. For instance, remote probing
enables quite rapid and reliable deciphering of
developed parcels, parcels used for mineral resources
extraction, areas under crops, the forest cover, etc.
Correlation of actual monitoring data with geospatial
data on boundaries of land parcels and the farming land
structure in a computer system will enable automatic
detection of the bulk of violations of the land and nature
protection legislation.
Land accounting problem
The system of statistical reporting on land resources,
quantitative land accounting7 needs to be brought in
conformity with the present-day classification of land
by target purpose and coordinated with the European
classification systems CLUSTERS (Classification
for Land Use Statistics: Eurostat Remote Sensing
Programme) and CORINE (Coordination of Information
on the Environment).
Ukraine’s European choice will require creation
of preconditions for the national land cadastre system
integration within the INSPIRE (Infrastructure for
Spatial Information in the European Community)
initiative framework, aimed at creation of the
infrastructure of spatial information on the European
scale, which is expected to help demonstrate the value
of information for good state governance, private
business and individuals.
The INSPIRE project establishes the general rules of
creation of the infrastructure of spatial information that
may later be used to pursue the environmental policy
or actions that can have an environmental impact. That
infrastructure may also be used in other branches (e.g.,
transport). INSPIRE will rely on spatial information
infrastructures created and used by the EU member
countries. Components of those infrastructures are to
include: metadata; spatial data sets (including cadastral
data on parcels and their boundaries and possessing
some legal ownership status); network services and
technologies; agreements on information use, including
join access; coordination and monitoring mechanisms;
technological processes and procedures.
Participation in the INSPIRE project should also be
viewed in the wider context of two other initiatives:
GMES (Global Monitoring for Environment and
Security) and GEO (Group on Earth Observations).
Both initiatives make particular focus on the need
to improve data integration and management of
information for Earth monitoring using space observation and ground networks.
In this context one should welcome the State
Committee for Land Resources Order “On Approval
of Requirements to the Structure, Content and Format
of Execution of the Results of Land Planning Works
in Electronic Form (of an exchange file)” No.573 of
November 2, 2009, introducing from May 15, 2010,
a new procedure of execution of land planning work
results in the electronic form (of an exchange file)
created for data entry in the Land Book and the Log of
registration of state deeds of the right to land ownership/
permanent land use, land lease agreements kept in an
electronic format, and establishing the set of lexical and
syntactical rules for exchange file construction.
Law on the land cadastre
Adoption of the Law “On State Land Cadastre”8
is to become a serious milestone in the land cadastre
development in Ukraine.
One should also welcome such novelties of the Bill
as its departure from the archaic practice of certification
of title to land parcels using state deeds and legislative
provision of a single document of title to a land parcel –
an extract from the State Register of ownership rights to
immovable property. It specifies the exhaustive list of
land planning and land valuation documents presenting
grounds for data entry in the state land cadastre. The
Bill provides for implementation of a fundamentally
new approach to imposition of limitations on land
parcel use and regiments the procedure of data
exchange between the State Land Cadastre and the State
Register of ownership rights to immovable property.
The provision of publicity of the State Land Cadastre
data is extremely important.
We hope that the efficiency, integrity and transparency of the land cadastre system will be subject to
continuous future monitoring.
By and large, it may be argued that in the present
conditions, skilled and incorrupt managerial staff and
wise legislation present the key for successful creation
of the land cadastre system in Ukraine.

7
See State Statistic Committee Order “On Approval of Forms of State Statistical Reporting on Land Resources and Instruction on Filling in State Statistic
Reports on Quantitative Land Accounting (forms No. 6-zem, 6a-zem, 6b-zem, 2-zem)” No.377 of 5 November 1998 (as amended by the State Statistic Committee
Order No.420 of October 16, 2001).
8
Bill No.8077 of February 4, 2011.
RAZUMKOV CENTRE
51
UKRAINIAN PARADOXES
AND PROBLEMS
OF STATE LAND CADASTRE
DEVELOPMENT
Anton TRETYAK,
Director, Educational-Scientific Institute
of Economy of Natural Resources and Environmental Land Use
of the State Environmental
Academy of Education and Management
of the Ministry for Environmental Protection
and Natural Resources of Ukraine
T
he world practice proves that the only workable mechanism to establish order with the legal status and use
of land, regulate land relations and involve land property in economic circulation is provided by the land
cadastre, comprehensively solving legal, socio-economic, territorial organisation and environmental tasks.
That is why all steps involving redistribution of land, creation of new land tenures (estates), organisation of
efficient use and protection of land should be made solely on the basis of reliable land cadastre information
about land property as the basis for efficient use of Ukraine’s national wealth – land and other resources – and
management of land use by legal entities and individuals.
However, over the entire period of land and property relations’ reform, no land cadastre system has been
created in Ukraine. Despite the submission of several bills on the state land cadastre, its idea and essence
have not been legislatively outlined – in particular, due to the poor professionalism and incompleteness of
such outlines. The most recent (fourth) version of the bill (registration No. №8077 of February 4, 2011) was
no exception. Such situation again actualises the need of conceptual analysis of the problem and a sound
perception of the state land cadastre (SLC) system that should be built in Ukraine.
The main problem for Ukraine now is
presented by the process of recording data
of land property, land use and assessment
in the state land cadastre.
As we know, the world practice knows only two
kinds of land plot record systems. One is usually used
for management, property is recorded for modelling
at solution of managerial tasks. The other involves
records enabling identification of land plots and other
items related with them, with associated rights and
duties and ensuing consequences, after completion
of the procedure of state registration of documents of
title and land plots as the main item of the state land
cadastre.
1
SLC in Ukraine is a system of the second type,
first of all, legal. So, first, the provisions envisaged in
the bill on SLC are mainly intended to make the legal
portion of the land cadastre system. Its entries will be
land plots as the main items of immovable property,
buildings, ameliorative and other structures, land
tenures, perennial plantations, plots of the land interior
and water bodies.1
Second, the presumption of official description
of the entered property should be applied, i.e.,
precedence of official description of the data entered
in the state land cadastre over all other descriptions
of that property. This point is fundamental, since an
SLC item is recognised on behalf of the state within
It corresponds to Article 181 of the Civil Code of Ukraine.
52
UKRAINIAN PARADOXES AND PROBLEMS OF STATE LAND CADASTRE DEVELOPMENT
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the boundaries and with the features assigned to it
during its entry in the state land register.
Apparently, the state land cadastre should be
understood as a single state system for confirmation
and recognition of documents and data of the state
border of Ukraine, boundaries of administrativeterritorial units, cadastral zones and quarters, areas
(protected, sanitary, subject to special procedures,
etc.), territorial limitations on the use of land,
land plots, as well as description and storage of
data of land classification, its quantitative and
qualitative state, land distribution by category,
form of ownership, among land owners and users,
evaluation of lands and land plots and their legal
procedures.
An SLC defined like that can perform a number of
functions, specifically:
first – accounting, necessary to perform registration
of land cadastre items and the rights going with them;
second – fiscal: the state should form the taxation
base on the basis of true data and determine the
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RAZUMKOV CENTRE
cadastral value of items by means of proper standard
pecuniary valuation. The tax service now runs a highly
sophisticated information system and is ready for
integration and creation of the taxation base of items
of land use;
third – informational: provision of individuals,
businesses, the state with reliable, legally significant
data on items of land use. This boosts competition and
promotes use of information for state regulation of land
relations, planning, investment projects, etc.
The first function, ensuing from the purpose of
the system of state registration of ownership rights
to immovable property and their encumbrances, may
be extended to include: guarantee of recognition
and state protection of title to immovable property,
creation of conditions for immovable property
market functioning. In particular: the first function
may be replaced with the registration and recording
function, since the first section of the State Register
of ownership rights to immovable property, vested
in judiciary bodies, mainly rests on the land cadastre
data. Registration of previously recorded immovable
property will not require repeated recording.
Responsibilities of the bodies in charge of title
registration and the bodies in charge of cadastre
maintenance should be clearly delimited and
specified in regulatory documents.
Informational resources of items of the SLC and the
State Register of ownership rights should be integrated.
Therefore, the standards and electronic circulation for
outside users should be clearly specified for easy and
prompt exchange and use by individuals.
Finally, cadastral recording of natural resources
should be spatial. An electronic country map should
finally be made, showing accurate boundaries of
administrative-territorial units, cadastral zones and
areas subject to territorial limitations.
SLC in land law relations
In the land law theory and practice, legal relations
pertaining to land are divided into substantive and
procedural, in line with law norms division by
organisational forms. Substantive legal relations
pertaining to land are regimented by norms that specify
the rights and duties of actors of land relations (e.g.,
the right to obtain a land plot). Procedural relations
are regimented by norms that specify the procedure
of emergence, amendment and termination of legal
relations pertaining to land (e.g., the procedures of
exercise of land administration (land management
process),
state
land
cadastre
maintenance,
consideration of disputes pertaining to land, etc.).
By the functional application of the land law
norms, procedural legal relations pertaining to land
are subdivided into regulatory and protective. SLC
53
on the national level, there will be information
necessary and sufficient for decision-making also on
the local level.
maintenance falls under both regulatory – in terms of
conduct by actors of legal relations pertaining to the
land cadastre, and protective relations – in terms of
the state response to unlawful conduct of procedural
legal relations pertaining to land (e.g., at settlement
of land disputes dealing with land plot boundaries or
limitations on land use).
Therefore, one of the key strategic objectives of
SLC maintenance is to separate the procedure of legal
relations dealing with emergence (land administration),
state registration, recording and evaluation of the
state land cadastre items. SLC items include: the state
border of Ukraine; boundaries of administrativeterritorial units; boundaries of territories subject to
limited and special procedures of land use; land plots,
water bodies as elements of procedural legal relations
falling under SLC, specifically: coastal waters of 12
nautical miles; water areas of Ukrainian ports; water
areas of gulfs, bays, estuaries, harbours and roads
whose shores entirely belong to Ukraine, as well as the
portion of water areas of rivers, lakes and other water
reservoirs limited by the line of the state border.
Description of SLC elements by functional
application of the land law norms is presented in Table
“Description of the State Land Cadastre elements
by functional application of the land law norms”.
Whereas all SLC elements by functional application of
the land law norms belong to regulatory and protective
procedural legal relations pertaining to land, its data
should also have a legal status. Therefore, the state
land cadastre cannot be a usual informational system
of land plot data.
An hierarchical SLC system will provide sufficient
for management, detailed or summary data of
cadastral areas (quarters), actors, etc. The reliability
and accuracy of the data will be ensured through their
integration, and with time, the task of integration of
the land cadastre, the cadastre of immovable property
and the system of branch cadastres should be set.
Information support in the first place means prompt
access to data (which will also enable monitoring of all
items).
In the first place, we should conditionally separate
the portion of emergence of the SLC items to be
referred to the market of self-regulating institutions,
i.e., to be dealt with by business entities that are active
on the market and able to compete (chart “Model of
multipurpose use of State Land Cadastre data”).
Principles of the State Land Cadastre
maintenance
The fundamental points of SLC maintenance are as
follows:
And, finally, the state land cadastral system is a
key to effective municipal management of territory
development. Discussion is underway, whether
cadastral records may be transferred to the municipal
level. We suggest minimising the parameters that will
ensure unique identification of land property – hence,
• obligatory recording of all items located within
the land plot boundaries, irrespective of the form
of ownership and location on the territory of
Ukraine;
Description of state land cadastre (SLC) elements
by functionality of land law norm
Item
Title of SLC
element
Functions of SLC
element
Kind of legal
relations of land
procedure
1
Cadastre zoning
Registration,
accounting,
information
Regulative
1)
2)
3)
4)
2
State Register
Registration,
accounting
Protective
1) Log of registration of state deeds to the right of ownership
of and the right of permanent use of land, land lease
agreements specifying cadastre numbers
of land parcels;
2) Land Book, containing data of land parcel;
3) Register of territorial limitations on land use
4) Register of boundaries of administrativeterritorial units
3
Accounting of
Accounting, fiscal,
quantity and quality
information
of land
Protective and
regulative
4
Assessment of land Fiscal, information
and land parcels
Regulative
54
Content of SLC element
the place for limitations on land use;
boundaries of cadastral areas and quarters;
boundaries of valuation districts and areas;
cadastre numbers (territories of
administrativeterritorial units)
1) accounting of quantity of land and land parcels;
2) accounting of land quality
1)
2)
3)
4)
land classification;
business assessment of land;
standard pecuniary valuation of land and land parcels;
expert pecuniary valuation of land parcels
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•
uniform rules and methods of SLC
maintenance. All registration and recording
operations, operations of issue of information,
issue of certified extracts should be performed
under common rules. There should be no other
requirements and interpretations of the law;
•
continuity of SLC maintenance, since land
property is circulated every day;
•
publicity of information. The land cadastre
is a public register. It can contain no restricted
information. Information should be structured so
that the data from the SLC and the public register
are accessible to everyone under rules clear to
everyone and established by regulatory acts.
Information cannot be refused if a request is in
compliance with law norms.
All SLC elements are interdependent and
interrelated. The main purpose of that system is to
provide state guarantees to owners of registered
items of the land cadastre. Unfortunately, today,
such guarantees are almost absent. The land title
registration system is to create insurance funds that
should cover losses sustained by title-holders, if their
rights are violated in course of introduction of the
title registration system. That domain of procedural
legal relations is not regimented at all. Meanwhile,
the mentioned Bill on SLC does not even mention
the system of insurance of registrar operation and
insurance of databases.
In the end, SLC records of its items shall present
the ultimate evidence to rule out land ownership
disputes, visits to various institutions and courts’
ability to pass varied rulings. So, there should be one
source and common rules of data processing.
RAZUMKOV CENTRE
Conclusions
1. SLC data in Ukraine are used for state
registration of title to immovable property, land
tenure taxation, rent, regulation of land relations,
land use and land administration planning, protection
of land and soil, etc. So, they should have a legal
status and be entered in and issued from the cadastre
in line with the norms of procedural legal relations.
2. SLC should be understood as a single state
system of documents and data of the state border
of Ukraine, boundaries of administrative-territorial
units, cadastral zones and quarters, areas (protected,
sanitary, subject to special procedures, etc.),
territorial limitations on the use of land, land plots, as
well as data of land classification, its quantitative and
qualitative state, land distribution by category, form
of ownership, land owners and users, evaluation of
lands and land plots and their legal procedures.
3. The main functions of SLC in Ukraine should
be: registration and accounting, fiscal, informational,
and use of its data – multifunctional, covering,
in particular: civil circulation of land plots and
property closely tied with them, state guarantees
of land ownership rights, collection of land fees,
organisation of efficient and rational use of land and
other natural resources.
4. All SLC elements by functional application
of the land law norms belong to regulatory and
protective procedural legal relations pertaining to
land, therefore, its data should have a legal status,
and its records should be the ultimate evidence to
rule out all land ownership disputes, visits to various
institutions and courts’ ability to pass varied rulings.
Therefore, SLC cannot be a usual informational

system of land plot data.
55
AN IDEALIZED MODEL
LAND ADMINISTRATION
SYSTEM: A THOUGHT
EXPERIMENT
Malcolm D. CHILDRESS
Senior Land Administration Specialist, World Bank
T
his essay proposes a thought experiment: If you could combine the best aspects of the world’s land administration systems into one new system and set it into motion under a new mandate, what would you
do? And how would you ensure that the marvelous new system was not corrupted by rent-seeking and vested
interests?
This is far from an obvious question, perhaps, and one without any single, “right” answer, but one which
the policy-makers of Central Europe have had to wrestle with country by country as they strive to move from
privatization and re-allocation of property to the administrative support of robust property markets and a balanced public interest role in promoting efficient, equitable and sustainable land use.
This process continues to this day and has become more important as booms and busts in urban real
estate, rising food prices and environmental crises make land markets and land management a crucial topic
for sustainable development, public administration and environmental and social justice across the region.1
Idealized global hybrid
This essay proposes one, necessarily idiosyncratic,
answer to the question. Our cobbled-together system
we call the “idealized global hybrid” combines
the technological sophistication and private sector
management approach of the Netherlands, the pragmatism
about boundaries of the British system, the customer
orientation of the Australian system, and the electoral
accountability of the American system.
This system would not look unfamiliar: global
experience, particularly that of countries with highly
sophisticated land administration systems, reveal more
similarities than differences in solving the practical
challenges of recognizing, recording and updating land
and property information to a high standard of accuracy,
legal reliability and user-friendly efficiency. Ultimately,
the biggest similarity has to do with institutionalized
practices of good governance and accountable public
administration which are embodied through service
standards, professional capacities and ethics, automated
data management, customer orientation and political
accountability.
Although information technology plays a leading role
in managing complex information and business processes
in these systems, technological solutions are only as good
as their environment, and must be based on “operating
systems” of local access, institutional and capacity
development, a judicial system capable of enforcing the
rule-of-law in property cases, and an active public that
is willing to demand accurate and efficient services and
reject corrupt or inept practices.
1
This article refers to: Enemark, Stig. (2010) Spatially Enabled Land Administration: Responding to the Global Agenda and Addressing Societal
Needs. Keynote paper at The GSDI-12 World Conference, Singapore, October 2010; United Nations Economic Commission for Europe (UNECE),
Working Party on Land Administration. (2000). Study on Key Aspects of Land Registration and Cadastral Legislation.
56
AN IDEALIZED MODEL LAND ADMINISTRATION SYSTEM: A THOUGHT EXPERIMENT
Before taking up the challenge, the thoughtexperimenter may first wish to ask: why should a modern
citizen care about the arcane, archaic, legalistic and
bureaucratic backwater of land administration? First
and foremost because the legal security of her house,
garden and farm depend on it, and second because the
society relies on this information to be able to manage
properties and carry out transactions (purchase/sale, lease,
inheritance, divorce, bankruptcy, mortgage, compulsory
acquisition, etc.) between independent parties with no
prior relationships.
This security and management ability ramifies at the
collective level: the manner in which a country, a region
or a locality manages land has fundamental importance for
sustainable development. The relationship between land,
its users and the larger social and economic framework
has been called the sustainable land management
paradigm (Enemark, 2010), as depicted in the Diagram
“The Sustainable Land Management Paradigm”. The
benefits from well-managed land are cross-cutting across
all sectors of the economy and society. In particular
urban real estate development, agricultural production
and natural resource management depend heavily on
well-managed land resources with good incentives for
investment, utilization and resource conservation.
Land administration functions, specifically land
registration and cadastral functions, play a central
role in the sustainable land management paradigm by
defining ownership rights and other rights, restrictions,
responsibilities and interests in land, providing a
geographic representation of the land parcel to which
those apply and linking that information to a person or
entity. Land markets, land development and investments
into land and building rest on a documentary foundation
of land registration and cadastre, and the confidence that
actors in these areas have in their land rights is directly
dependent on how well these institutions function.
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Certainty of ownership with strong legal protection
thus contributes to a long list of benefits in the society:
•
security of tenure;
•
reduction in land disputes;
•
improved conveyancing;
•
stimulation of the land market;
•
security for credit;
•
monitoring of the land market;
•
facilitation of land policy reforms;
•
management of State lands;
•
support of land taxation;
•
improvement
in
physical
environmental management;
•
recording of land-resource information;
•
provision of geo-spatial information.
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So let’s design our idealized global hybrid system:
•
It will combine a land registration function and a
cadastral function into a single automated land
information system based on key data requirements
in an integrated data system or data bank (like the
Netherlands or Sweden).
•
It will be complete and updated, available for
consultation on the Web for a fee, and available for
web transactions to licensed, certified users (like in
Scotland).
•
Its records will hold up in court cases and the system
itself will almost never lose a legal challenge (like
in Australia), but will be indemnified if they are
harmed as a result of relying on the records held in
the registry.
•
Customers will believe they get good value for
money in the services the system provides and
believe that the system’s services are reasonably
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and
So the bureaucratic backwater of land administration
is actually a key institutional element of governance
and basic building block for economic, social and
environmental development.
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planning
57
priced and free of corruption. The perceived benefits
of using the system, the relative costs and the ease
of access will largely reduce informal transactions
to a negligible level over time.
•
The underlying geo-spatial and attribute data,
including individual property owners’ names will
be public and searchable by property.
•
These data, tied spatially to the country’s geodetic
control and street addressing systems, will be
available for commercial uses for a reasonable fee
(like the United Kingdom, Canada and Australia).
The system will be self-financing from user fees
and will generate additional economic benefits from
commercializing some types of land information
(as in all the above).
Now let’s unpack the constituent elements of the
system: land registration, cadastre, IT infrastructure,
spatial data standards, system management and the
governance environment.
Land registration
Land registration is a process of official recording
of rights in land through deeds or as title on properties.
It means that there is an official record (land register) of
rights on land or of deeds concerning changes in the legal
situation of defined units of land. It gives an answer to the
questions by whom is the property owned and how are the
rights and interests to the property defined.
Cadastre is systematically organized inventory of
data concerning properties within a certain jurisdiction,
based on a survey of their boundaries. Such properties
are systematically identified by means of some identifier,
like a unique parcel identification number. The outlines of
the property and the parcel identifier normally are shown
on large-scale maps which, together with registers, show
for each separate property the nature, size, value and legal
rights associated with the parcel. The cadastre answers the
questions where and how much. It is obvious that these
two sets of information need to cross-reference each other
systematically and automatically to be able to respond
to the range of queries and informational needs which a
modern economy generates.
There are two main types of systems of land
registration, deeds systems and the title registration
systems.
Deeds systems record contracts related to a parcel
of land and have to be indexed by name and parcel. A
deed registration system means that the deed itself, that
is, a document which describes an individual transaction,
is registered. The deed is evidence that a particular
transaction took place, but it is not in itself proof of the
legal rights of the involved parties and, consequently, it is
not evidence of the transaction’s legality. Thus before any
dealing can be safely concluded, the ostensible new owner
must trace her ownership through a valid chain of title to
a root title, or at least to a cut-off date in time satisfactory
to show that there are no other interests in conflict. Deed
registration, whether the “basic” or the “improved”
one (based on a survey and on documents of competent
notaries as well as on an active role of the register) is
usually applied in countries which are mainly based on
the Roman law (in Europe: France, Spain, Belgium, The
Netherlands) and also in countries that were influenced
by the Roman legal system through colonization: South
America, parts of North America, and some African and
Asian countries.
A title registration system means that it is the parcel
itself, not the deed which is the object of registration. A
paper or electronic folio is opened for each property and
the folio contains the complete geographical information,
plus the name of the rightful claimant and the restrictions
and charges which correspond to the parcel.
Around the world, there are both deeds and title
registration systems, which operate largely on the same
principles but differ in procedures.2 The cartographic/
mapping/surveying functions slightly differ among these
groups, i.e., the English group makes use of large scale
ordnance survey maps and permits general boundaries
(i.e., features such as a wall or hedgerow instead of a
precisely surveyed line), the German group of parcelbased cadastral maps, and the Torrens group makes use
of incidental survey plans. Having said this, technology
is increasingly making the procedural differences in these
systems less important. Land registration and cadastral
information is increasingly managed as a unified data
model in a highly flexible database environment.
Another way to categorize title registration systems
on a more functional basis would be whether or not
registration carries a state guarantee, whether rectification
of the registration on ground of error, fraud or adverse
possession is allowable; on differences in maps and
survey and in the methods of initial compilation. As
Diagram “Are rights guaranteed by the state?” shows,
a majority of jurisdictions surveyed by the UNECE
Working Party on Land Administration (UNECE 2000)
have some form of state guarantee of registered rights.
The USA is a notable exception and relies almost entirely
on title insurance to mitigate title risks, at a significant
costs to property transactors.
So deeds or title system for the idealized global hybrid
model? We will first note that in a fully integrated data
model, the distinction is much less important than in
2
The English Group of deeds systems includes, most of the USA, some Canadian provinces, Nigeria, India, and Sri Lanka. The Germanic/Swiss/
Scandinavian Group of deeds systems includes: Germany, Austria, Alsace-Lorraine, Switzerland, Egypt, Turkey, Sweden, Denmark, the Netherlands,
Sweden, Norway, and Finland.
The Torrens Group of title systems includes Australia, New Zealand, some provinces of Canada, some parts of the USA, Morocco, Tunisia, Syria.
Torrens systems emphasize public availability of the registered information. England, Ireland and Scotland operate title systems similar to the Torrens
type, and have recently introduced electronic conveyancing and digital signature capacities.
58
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“general” and “fixed” boundaries depends on the
pace of creating or updating the system, the existence of
physical features, disputes to be expected, the amount of
necessary security and the costs. A cost/benefit calculus
therefore is necessary to make a policy choice in this
area. As shown in Diagram “How are registered property
boundaries defined?”, respondents to the UNECE survey
are split between coordinate-based and general boundary
definitions.
)PXBSFSFHJTUFSFEQSPQFSUZ
CPVOEBSJFTEFGJOFE earlier, paper-based eras. We will opt for a title system
in order to give the strongest security through a state
guarantee of title, and we will index the cadastre and the
registry together in a single data model and IT system,
so it will create electronically searchable records of all
transactions relating to a specific parcel of land, and thus
make title searches easy, quick and reliable.
The Cadastre
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The task of a cadastre is mainly geographicallyoriented i.e. fixing and representing the parcel in
an accurate relationship to the surface of the earth,
especially as it relates to neighboring boundaries and
landscape features. To do this the cadastre needs to
represent every property parcel to a socially sufficient
accuracy on a large scale map with a parcel identifier.
This identifier is used in the land register to indicate
the legal object in a unique way. This identifier (usually
called a unique parcel identification number) connects
the legal description of the property parcel with the
cartographic representation of it. In addition to the map or
the geometrical representation of the parcel the cadastre
also contains descriptive attributes about the parcel
recorded alphanumerically: i.e. unique parcel identifier,
local location, area, kind of use and attributes like data
for land tax such as assessed value, proprietor and/or
taxpayer. The cadastral information also contains a crossreference to the land register.
Cadastral systems vary in the way that parcel
boundaries are mapped and described geographically.
The English system relies mainly on physical boundary
features, man-made or natural. The precise position of
the boundary within these physical features depends
on the “general” land law of the country concerned.3
This boundary system is known as a “general boundary
system”. The system provides, however, for the
precise surveyed boundaries to be “fixed” if desired
by the owners. After entering the precise survey data
in the land register (i.e., the geometric coordinates)
the boundary is “legally” fixed for everybody and
guaranteed. Without registering the precise survey data,
these boundaries are not legally fixed and have the legal
effect of “general boundaries”. The choice between
So general boundaries or fixed boundaries for our
idealized model system? We choose a general boundaries
system like the United Kingdom with the option of fixing
boundaries on demand at the property-holders’ cost in
order to avoid costly and largely superfluous ground
surveys of parcels whose boundaries are not in dispute.
We will digitize all our parcel maps in a geographical
information system tied to a national coordinate system so
that they can be linked to all other types of geographic
information from utility maintenance systems to zoning
and disaster prevention plans. At the same time we will
put all the registry’s legal information into the same data
model, so that searches using cadastral identifies will
generate lists of ownership rights and vice-versa.
Should one agency run the cadastre and the
registry?
Should the cadastre and the registry be combined
into a single agency, or be separated? Global experience
reveals preferences for both. In our idealized global hybrid
system we select a unified agency which will have
separate registry and cadastral departments linked
electronically and automatically in one data model
and one IT environment, like Germany’s. This allows
for a high degree of specialization in core functions of
registration and cadastre, and ample checks and balances
on each department’s actions by the other, while ensuring
that the actual data environment is seamless and uniform,
with full cohesion between cadastral and registration data
and functions, and continual updating.4
To make the system work there are four major administrative actors, each playing a distinct and specialized role in
3
The term “general boundaries” originates from the English land recording system.
The single agency model may have some risks of concentrating too much power in its executive, but its advantage in resolving the potential for
non-cooperation between cadastral mapping and registration functions is a significant advantage.
4
RAZUMKOV CENTRE
59
the work flow of property recordation, conveyancing and
updating, and each providing checks and balances on the
others:
•
notaries are responsible for the correctness of the
documents to be presented to the registrar;
•
surveying and mapping agencies are responsible
for the geographical identification and description
of the property parcel(s);
•
the registry is responsible for the integrity, storage,
access to and maintenance of the legal land records,
in order to maintain a correct picture of their legal
situation;
•
the information technology management
department covers database storage, geospatial
representations, user interfaces, communications
and security, i.e., all the functions necessary for
recording and supplying information.
Therefore in our idealized hybrid model, the
legal framework will carefully spell out the roles and
responsibilities of each of these actors and give them
liability for errors or negligence in the performance of
their role.
How can our system maintain integrity and
embody good governance? To be successful, a land
registration and cadastre must enjoy popular support. For
this reason registrars are local elected officials in the USA.
If they fail to perform they can be voted out of office the
next election. We will make our idealized system feature
elected registrars in each local jurisdiction. We will
stipulate full public accessibility to the land records on
request. We will create an independent ombudsman and a
complaint channel to a national supervisory authority, and
we will implement regular user survey’s whose results
will be published annually.
We will also institute a separation between front
office staff who simply receive and route requests, and
back-office staff who review them in order to decrease
the possibility for petty corruption, and let’s set rigorous
service standards for every type of transaction. These
features are found through the world and a policy of open
access to registry records is observed in the large majority
in the UNECE survey as shown in Diagram “Is the land
register open to public inspection?”
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60
Financing of the land recording system
We have options to finance it out of the government
budget, or a mixture of user fees and budget or wholly
by feeds paid by consumers. As we can see in Diagram
“How is land registration financed?”, the vast majority
of systems surveyed by UNECE are either wholly
financed through user feeds or a mixture of user fees and
government funding. In this case our idealized global
hybrid system will opt for a mixed set of funding sources
because some transactions may be in the public interest
and partial subsidization of some transactions my promote
various public goods.
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We have the outline of our system:
•
a locally accessible, automated registration of every
transaction;
•
linked systematically and automatically to the
parcel’s cadastral information in a title registration
system operated by a single, self-financing property
administration agency;
•
characterized by a high degree of user-orientation
and featuring a number of systems to ensure its
integrity and transparency.
We think we have the best of world experience in this
formulation.
Now we have to operate it. For the operational
challenge, we have scarcely scratched the surface of
the legal and regulatory construction, human capacity
development, financial management, detailed IT
architecture/testing/quality control, data acquisition,
cadastral mapping and public education necessary
to really make our idealized system work as fully
functioning entity managing thousands of transactions
per day in local offices. But even the partial picture
revealed by the thought experiment shows that global
practices in land administration robustly share certain
basic features. Those interested in the evolution
of new and reforming systems can benefit from a
consideration of these features and the audacity of
experimenting with thoughts of how they can be used
in concert in the interests of the sustainable land

management paradigm.
RESULTS OF THE LAND
RELATIONS REFORM AND
PROSPECTS OF THE LAND
MARKET INTRODUCTION
IN UKRAINE
Anatoliy YURCHENKO,
Department Head, Educational-Scientific Institute of Economy of Natural
Resources and Environmental Land Use of the State Environmental
Academy of Education and Management of the Ministry for Environmental
Protection and Natural Resources of Ukraine
I
n course of 20 years of land reforms, Ukraine saw serious changes in the land ownership structure that
however did not result in the growth of land use efficiency, in particular, in agriculture, where land resources
are the main means of production. Privatisation of farming land was not accompanied with regular enhancement
of state guarantees of inviolability of rights to land plots acquired by the country citizens and legal entities.
Due to the deterioration of the land cadastre operation, there is growing concern about introduction and
efficient operation of the farming land market as a prerequisite of optimisation of the agriculture structure,
solution of socio-economic and demographic problems of the rural population.
Progress of the land “reform”
The guarantee of validity of a title to land property is
one of the main duties of the state in terms of provision of
constitutional rights, freedoms and legitimate interests of the
country citizens. In the present conditions those duties are
vested in the executive bodies in charge of land resources.
Meanwhile, according to analysts, over the period
of the “reforms”, the information base for regulation of
land relations and protection of the rights of citizens, legal
entities, territorial communities and the state has largely
been lost.1 Most of the present agricultural land tenures
and estates have no planning, cartographic and land
cadastre materials. Quantitative recording of lands is in
decay. Recording of the qualitative state of land resources
state has actually been reduced to nought. Standard
pecuniary valuation of farming land resting on materials
of the Soviet times is obsolete. Registration of land plots
is irresponsible and fragmentary.
1
The reforms were accompanied with steady growth of
the value of land cadastre operations, bureaucratisation
of the process, forms and substance of the relevant
procedures. At the same time, the quality of execution of
title documents to land and certification of rights to land
plots declined disastrously.
The bulk of the land cadastre activities envisaged
by the law (Article 196 of the Land Code of Ukraine)
is not performed at all, others, such as recording of land
quantity and quality, are performed formally, giving rise
to doubts about the reliability of the relevant information.
Over the years of the land reform, the form and substance
of state certificates of private land ownership were
changed four times.
The present-day agricultural structure was shaped
without the land cadastre and land management support
at creation of land tenures of modern market-oriented
agricultural enterprises, determination of their limits,
See: Novakovskyi L.Ya. Ways of perfection of legislative support for regulation of land relations. – Zemlevporyadnyj Visnyk, 2009, No.4, p.23 (in Ukrainian).
RAZUMKOV CENTRE
61
RESULTS OF THE LAND RELATIONS REFORM
land property structure, land and farming land area. The
number of agricultural enterprises is growing impetuously
and, according to the State Statistic Committee, exceeded
57 thousand.2
not been created in Ukraine, which questions the
expedience of cancellation of the moratorium on
market circulation of farming land plots from January
1, 2012.
Delimitation of state and municipal lands (actually not
even started) was suspended. Land inventory goes on as
an indefinite, formal and costly process.
Inventory: the necessary step to success
The state land cadastre (SLC) materials contain no
official information about almost 70% of land plots for
which documents of title have been issued (totalling
some 25 million.)3 The technical level of delimitation of
millions of individual land plots is generally low. Not all
of them have the turn point coordinates. For their location,
different systems of coordinates were used. In most cases
land plot locations on cadastral plans and on ground do
not coincide.
From the early years of Ukraine’s independence,
numerous international sponsor organisations tried
to provide assistance to Ukraine with the creation
of a civilised land cadastre, acting both directly and
by providing grants. The state’s inconsistency and
helplessness are showily witnessed by the situation with
the “Issue of state deeds of land ownership in rural areas
and cadastre system development” project dealing with
the cadastre system development. After the Ministry of
Justice, due to amendments in the legislation, assumed
the duty of maintenance the register of title to immovable
property, the World Bank restructured the project and
cancelled funding of creation of the register of title to
immovable property.
The Programme of creation of an automated system
of the state land cadastre maintenance that envisaged
its completion yet in 2005 was not accomplished. State
registration of land plots is performed not by a state body
but by an enterprise whose respective powers are not
specified by the law.
Limitations imposed on the title to land plots
formally recorded in title documents have no practical
effect. Establishment and restoration of borders of
administrative-territorial units remain a lasting problem.
Repeated attempts of adoption of the Law of Ukraine
“On State Land Cadastre” and year-long disputes between
the specially authorised state body in charge of land
resources and the Ministry of Justice of Ukraine for the
right to perform state registration of ownership rights
to land plots and their limitations are nothing but an
irresponsible imitation of an efficient state land policy in
the field of land plot delimitation, certification of rights
thereto with the relevant documents of title and state
registration of land plots. As a result, the concerned Law
of 2010 is to enter into effect only from January 1, 2012.
Therefore, proper organisational and legal
mechanisms for protection of title to land plots have
In our opinion, introduction of market circulation of
land should be preceded by the post-reform inventory
of land and agricultural land tenures, first of all, outside
populated localities. At the same time it makes sense to
examine the available land cadastre documentation for
authenticity of establishment and staking of land plot
boundaries in kind (on the ground) and their correlation
with the concerned cadastral maps.
Only on the basis of the land and the land tenure
inventory materials one can establish the legal and
technical possibility, using the information base of the
modern land cadastre, to execute procedures of purchase
and sale of the part of privately owned land plots the
title to which is duly certified with state deeds and will
not require correction of the legal and technical mistakes
made. One cannot rule out the probability of replacement
of documents of title to land plots, solution of the problem
of duplication of rights to the same land plot for several
assignees of title to land.
The results of land and land tenures’ inventory outside
populated localities can be used for verification of SLC
databases in general. We are sure that only in that case,
realistic terms of a civilised land market introduction in
Ukraine can be determined. In our opinion, correction
of technical and organisational-legal mistakes made at
land delimitation will require 5-7 years of skilled work
of executive authorities dealing with land and local selfgovernment bodies and large budget expenditures, along
with appropriate legal support.
It would be irresponsible to further pretend that the
SLC has no problems, since falsity of a great deal of the
land cadastre information every day draws us closer to
the global crisis on the real estate market the effects of
which will affect the investment attractiveness of the
national economy for years.
Bill “On State Land Cadastre”: solution of
old problems, or creation of new ones?
On May 19, 2011, the Verkhovna Rada reviewed in
the first reading the Bill “On State Land Cadastre”.
The all-Ukrainian public organisation “Union of Land
Planners of Ukraine” has analysed that Bill as far back as
February 2011.4 The Main Scientific-Expert Department
of the Verkhovna Rada Staff produced its opinion, too.5
The conclusions reveal rather a critical view of the
Bill. In particular, it seriously narrows down the SLC
content, confining it to legal regulation of cadastral
zoning and state registration of land plots alone. Since
2
Statistical reference book “Agriculture of Ukraine”. – Kyiv, State Statistic Committee, 2009, p.52 (in Ukrainian).
In that, plots for gardening – 2.7 million, truck farming – 1.7 million, personal subsidiary farming – 11.7 million. See: Modern land policy of Ukraine. – Kyiv,
2009, p.50 (in Ukrainian).
4
Scientific expert opinion of specialists of all-Ukrainian public organisation “Union of Land Planners of Ukraine” on the Bill of Ukraine “On State Land
Cadastre”. – Zemelne Pravo Ukrayiny, 2011, No.3, p.34-39 (in Ukrainian).
5
Opinion on the Bill of Ukraine “On State Land Cadastre”. – Ibid, p.39-41.2
3
62
RESULTS OF THE LAND RELATIONS REFORM
the Bill’s title does not correspond to its substance, it
seems reasonable to change the title or to specify in it also
legal mechanisms of soil classification, environmental
assessment of land, pecuniary valuation of land plots,
cadastral surveys, recording of land quantity and quality.
The Bill does not envisage fully-fledged legislative
regimentation of SLC maintenance issues. It is proposed
to elaborate the provisions of that Law in 20 resolutions
of the Cabinet of Ministers, which points to insufficiency
of the regulatory content of the Bill and is fraught with
a delay of its implementation by at least 2-3 years, until
the Cabinet of Ministers issues such resolutions, and the
relevant methodological documents are developed.
In April, 2011, the Educational-Scientific Institute
of Economy of Natural Resources and Environmental
Land Use of the State Environmental Academy of PostGraduate Education and Management conducted a
sociological survey of the attitude of officers of regional
and local executive bodies in charge of land resources and
specialists of state land management project organisation
to the problems of legislative regimentation of SLC
maintenance.
It suggests that only 28.5% of respondents agreed
that the Law “On State Land Cadastre” should regiment
only the mechanisms of cadastral zoning and state
registration of land plots. Almost 60% is sure of the need
of comprehensive regulation of land cadastre activities in
the volume envisaged by Article 196 of the Land Code of
Ukraine.
Respondents unanimously agreed that state
registration of land plots should be performed only by
professionally trained state registrars whose qualification
requirements, duties and rights are duly specified; the
Law should also specify the exhaustive list of documents
to be submitted by applicants for state registration of land
plots. The proposal of state registration of land plots by
the so-called State Land Cadastre Administrator does not
find enough support (6%). And the so-called “electronic
document” (form in-4) should not replace the document
of title during state registration of land plots (60% of
respondents). Only 14% of respondents expressed the
opinion that the funds coming to state land bodies for
state registration of land plots should be used to support
the State Land Cadastre Administrator’s activity, 16%
believes that those funds should be transferred directly to
the state budget. 70% is sure that the money should be
spent on the registration system development.
“The cadre decide everything”
So, what are the main reasons for growing
dissatisfaction of society with the results of the state
land policy, in particular, concerning the acquisition
and exercise of rights to land?
We are sure that the state can pursue an efficient land
policy in a market environment, relying on highly qualified
land planners. However, during the land reform Ukraine
saw serious impairment of the professional level of the
RAZUMKOV CENTRE
land authorities’ management, and with that, of the land
policy efficiency. Land cadastre operations in the period
of mass privatisation of land involved many unskilled
persons who had neither adequate special training, nor
sufficient experience and were trained only to perform the
simplest actions. The “new specialists” employed in the
land cadastre concentrated only on land sharing, formation
of land plots of different forms of ownership, execution
and state registration of title documents. With time, such
their activity acquired varied, mainly selfish features.
The central executive body in charge of land resources
established with temporary functions over the period of
the land reform implementation has never worked as a
responsible, efficient and respected state executive body.
The politicisation of HR policy in land regulations, in
particular, key appointments by party quotas, increasingly
affect public confidence in the authorities and their ability
to ensure order in the land relations. The HR policy in
land structures evolved into kind of business, a way to
ensure immunity for unlawful land transactions, since
legal nihilism has become an absolute principle of activity
of both the ruling and opposition political forces.
Very painful processes of systemic dysfunction of
management in the field of land relations are deepening in
Ukraine. Since the State Agency for Land Resources, as a
central executive body, over the entire period of operation
proved unable to generate and effectively implement the
state market land policy, it seems reasonable to consider
its liquidation and transfer of all responsibility for land
affairs in the country directly to one of the ministries with
a serious experience of state governance. Regional bodies
of land resources in such case should be subordinated to
the concerned regional state administrations.
Land management bodies should work on the
principles of professionalism, integrity, thorough and
apolitical personnel selection.
Therefore, Ukraine should enhance the regulatory
influence of the state on creation of the optimal structure
of agricultural production, development of mechanisms
of market circulation of farming land. Creation of a
fully operational market of farming land should become

the logical outcome of the land reform.
63
THE CZECH EXPERIENCE
LAND REFORM, CADASTRE
OF IMMOVABLE PROPERTY AND
CARTOGRAPHIC, GEODETIC
AND CADASTRAL SERVICES
IN UKRAINE AND THE CZECH
REPUBLIC *
Milan
KOCÁB,
Research
Institute of
Geodesy,
Topography
and
Cartography
Aleš
TŘÍSKA,
CHEPOS
Joint-Stock
Company
Alexandr
DRBAL,
Research
Institute of
Geodesy,
Topography
and
Cartography
A
s far as we know, in Ukraine, the population holds state deeds of the right of private ownership to land
parcels (approx. 80%) and “certificates of the right to a land share” (approx. 20%), that are appropriately
registered. “State deeds” specify only the parcel area, the names of the adjacent parcel owners and a plan
made to scale 1:5000. As far as the plan is concerned, it is unknown who performed the survey and made the
plan, how the parcel area was obtained, there is no coordinate grid and list of coordinates of the parcel turn
angles, the system of coordinates used in not specified.
In most cases, land parcels are materialised on ground by land management organisations using local
contours (roads, woodland belts etc.), i.e., actually not using points of the public geodetic grid (PGG) or fine
grids and not even in the local system of coordinates. Parcel angles are fixed with usual wooden pegs, as a
rule, destroyed during field works.
Fortunately, since January 1, 2002, there has been a moratorium on land purchase and sale (only land
lease is allowed), otherwise there would have arisen insoluble land law problems associated with land parcel
boundaries and areas.
Now, Ukraine is about to cancel the moratorium and allow land purchase and sale. It is planned that it will
be registered by the Ministry of Justice, and the documents for that will be prepared by regional Land Cadastre
Centres and, possibly, Bureaus of Technical Inventory.
Proceeding from the above and from the experience
of a number of foreign countries, it may be said that in
Ukraine, land ownership and lease rights are not
clearly specified yet:
• property is registered in regions, there is no single
central database of land parcels;
• farming land lease agreement do not reflect the
parties’ will and are quite difficult to execute;
•
ownership verification is complicated – the
principle of the register and cadastre openness does
not work;
•
parcels are actually not shown on the ground, have
no exact planning, accurate theodolitic plans and,
as a result, exact areas, which also questions their
spatial location;
* This article builds on the reports by Dr. D.Tříska “Land reform – the case of the Czech Republic” and Prof. А.Tříska “Privatisation of land: key principles”,
presented at the working seminar “Prospects of the land reform implementation in Ukraine” (April 7, 2011, Kyiv) (in Russian).
Of course, the best option would be for a competent Ukrainian delegation to visit the Czech Republic where specialists could learn all issues of organisation and
practical functioning of the Cadastre of immovable property.
64
•
for most parcels, the soil productivity class is not
determined (it is determined every time at lease or
sale);
•
records and topographic surveys are made not by
the dedicated state services of geodesy, cartography
and cadastre, and licensed surveyors and land
planners, which witnesses the absence of a uniform
state technical policy;
•
with such land accounting, the state cannot
impartially plan profits and, most of all, effectively
subsidise agricultural production.
All this is very important for land parcel lease or sale
and can be done professionally only in presence of a state
cadastre of immovable property (CIP).
Proceeding from the above, it seems reasonable to
discuss the issue of introduction of a CIP relying on
internationally accepted principles in Ukraine. As an
example of such CIP, let us take a look at the Cadastre of
the Czech Republic.
Principles of CIP establishment and
keeping in the Czech Republic
The Czech cadastre exists from 1817, has established
traditions and enjoys trust of citizens who got used to
enter data in the Cadastre over that period and in that
way solve legal issues concerning immovable property.
That is why nobody questioned that system when the new
cadastral Law No.344/1992 (hereinafter – the Law) was
drafted. The Czech cadastre rests on principles established
by the Law and is used for:
•
protection of ownership rights to immovable
property;
•
tax and payment purposes;
•
environmental protection;
•
protection of cultural monuments;
•
protection and keeping of the agricultural and
forest stocks;
•
protection of mineral resources;
•
generation of information about territories and
passage of decisions on their development;
•
evaluation of immovable property;
•
scientific, economic and statistical purposes;
•
creation of other information systems.
Key principles of the cadastre of immovable property:
•
official character (the state acting through the
cartographic, geodetic and cadastral service keeps
official cadastral information);
•
accessibility and openness for the public (everyone
may see the cadastral information, make copies and
extracts, get information about immovable property
for an appropriate fee);
RAZUMKOV CENTRE
•
reporting (immovable property owners, state
authorities and local self-government bodies are
to report data of immovable property to cadastral
offices (CO));
•
cooperation (immovable property owners are
obliged to cooperate with COs);
•
accounting (all Cadastral records have an
accounting number, legal relations are to occur first,
and only then may be recorded in the Cadastre);
•
information system (the Cadastre is kept as an
information system using computer means);
•
information system of state governance bodies
(the Cadastre is incorporated in the National
Information System of state governance bodies).
According to the Law, the main principles at
introduction of amendments to the Cadastre include:
•
intabulation (meaning that the ownership right
arises simultaneously with its record in cadastral
registers);
•
accounting (immovable property owners are
obliged to timely and documentarily report to COs
about changes in the rights to immovable property);
•
legality (data are entered in the Cadastre on the
basis of the owner’s application, check of the
presented documents and subsequent permission to
enter them);
•
official character (a CO is obliged to make a record
of ownership rights, encumbrances and restrictions
in CIP on the basis of the owner’s application);
•
priority (records of all legal relations dealing with
immovable property are made from the date when
the request is received by a CO);
•
reliability of records (records of CIP data made
after January 1, 1993, meet the true state of affairs);
•
continuous control (an application for immovable
property entry in the Cadastre is accompanied with
a document proving that the applicant was the
immovable property owner before 1993);
•
optionality (additional rights to immovable
property are only registered on a request of the
person entitled to dispose it);
•
formal publicity (the Cadastre is open for the
public, every citizen may see it, make copies and
extracts, get information about immovable property
for an appropriate fee).
With account of the mentioned principles and in
line with the Cadastre openness, the laws dealing with
the cadastral system were amended. In particular,
amendments were made to the Civil and Trade Codes, the
Law on Land Property, Residential and Non-Residential
Premises, the Regulations of privatisation and restitution
and the Law on seizure of property.
65
LAND REFORM, CARTOGRAPHIC, GEODETIC AND CADASTRAL SERVICES IN CZECH REPUBLIC
The public welcomed the openness of the Cadastre.
Only some data (i.e., identification numbers) have
not been publicly released since 1993. No cases of
harm because of openness were recorded (including in
connection with restitution claims, in most cases reflected
in the Cadastre).
A very important decision that required political
solution was as to which body should keep the register
of ownership rights and the cadastre. What were the
criteria for the keeper’s selection?
transfer, records of pledge, encumbrance, pre-emptive
rights, etc.
Administration involves the review process and
the sequence of operations performed in a cadastral
office, specifying the terms, the person in charge and the
supervising person.
Each administration is divided into the following
operations:
•
beginning of administration;
In the Czech Republic, the Cadastre of immovable
property has always been kept by land management
bodies of state governance that had and now have
the appropriate equipment and personnel for that,
independent of lobbyist interests of different agencies and
reporting only to the Government.
•
verification of the completeness or sufficiency of
documents;
•
submission for review;
•
transfer of submitted information for update;
•
generation of proposals on changes;
So, keeping the register of ownership rights and the
cadastre was vested in the Czech land management
and cadastral department (Český úřad zeměměřický
a katastrální, ČÚZK) – the main body of the state
cartographic, geodetic and cadastral service.
•
coordination of would-be changes of a cadastral
record;
•
recording;
•
correction of written documentation;
It might be more economic to assign the Cadastre
creation and keeping to a private firm. However, first,
judging by the experience of some European countries,
this is not free of drawbacks, second – it would require
big changes in the legislation.
•
end of administration.
An important condition is presented by creation of a
practical mechanism of interaction among the state, legal
entities and individuals. Cadastre self-financing is also
very important for the state budget, data transparency,
reliability and speed of operations.
The Czech Cadastre is public, contains all items of
immovable property located on the country territory
in the digital electronic format, and is accessible at
the ČÚZK website.2 For searching, the numbers of land
parcels or structures within the cadastral area or map
(general cadastral map of the territory) are used. The
graphic cadastral portion has planimetric points on the
map of land parcels or structures.
At the ČÚZK website one can also remotely get
official extracts from the Cadastre (a paid service for
getting documents intended for legal action and for
application to state institutions).
In addition to specially designed computer protection,
cadastre offices also prevent corruption through
the process of administration (the client’s tracking of
information flow in the cadastre), like “Input”, “Record”
and “Topographic plan” (placement of the land parcel and
its structures on the cadastral map).
“Input”-type administration is performed to record
rights on the basis of agreements of immovable property
2
All those operations are independent, performed by
different persons who have different rights, duties and
passwords to enter the Cadastre of Immovable Property
Information System (hereinafter – CIPIS). All stages are
controlled, and written information is kept in the archives
of documents. Those measures let only a specified
group of officials amend CIP data, minimising room for
corruption.
In case of court process, all information is easy to find.
The administration procedure that lasts one month
may be tracked on the Internet stepwise. Furthermore,
more detailed information about the concerned issue may
be prepared officially on request.
Farming land
Alongside CIPIS, the information system of state
governance bodies also incorporates the Land Parcel
Identification Systems (LPIS) being created in the
EU countries for getting geospatial information about
territorial units and used for managing agricultural
subsidies. The geospatial information obtained is intended
for area management and focuses on farming land
identification, land (soil) data quality verification and
database update processes.
LPIS rests on the principle of farming blocks (actually
cultivated land territories held by one farmer and
associated with one culture). All updates of databases
(registers) are performed by agriculture department
officers locally, which substantially saves funds on
View Cadastre at Nahlížení do KN: http://nahlizenidokn.cuzk.cz/.
66
LPIS maintenance. At that, the land data quality is much
higher than the European average, thanks to the good
performance by Czech state officials. Amendments are
introduced in the real time mode. If, say, farming block
boundaries are changed, the changes are recalculated and
reassessed in a fully automatic mode. Every year onethird of the Czech territory is covered with a new set of
areal photography. The register data are fully accessible
on the farmer’s portal; using them, one may get extracts
and farming block maps, fill in an application for a
subsidy, send data and control the process of change in
the real time mode via the Internet.
What is good is that in the Czech Republic, LPIS is
dealt with by only two state institutions: the Ministry
of Agriculture that maintains the land register (LPIS),
and the State Agricultural and Interventionist Fund that
decides on subsidies. Since almost half of funds for
agricultural subsidies comes from the EU budget, this
issue is important.
Information is usually tied to physical milestones
(i.e., part of territory limited by local elements –
highways, waterways, forest boundaries, etc.). Such
blocks are divided into smaller parts. At subsidy payment,
correspondence of the total area to that specified in the
application for subsidy is verified, and the farming block
area is recorded in the register. In the Czech Republic,
the principle of farming blocks is widely used (one block
always has one user and one culture).
Many EU member states employ private firms to
digitise information for subsequent computerisation but
the latter, unfortunately, have to deal with low accuracy
of geodetic data. For data verification, some EU countries
gradually begin to employ officers of state institutions for
whom such activity is different from their main duties –
in that way, they can save money but not improve the
quality. At that, they often forget that LPIS exists to
help farmers with fair subsidies and at the same time –
to control the legitimacy of getting subsidies and the
efficiency of business.
LPIS might also be used in Ukraine – for agriculture
management by state and local bodies. More than that,
the system would draw Ukraine closer to the EU. Among
other LPIS benefits, one should note the possibility to
control areas under crops, and use of farming lands at
harvest planning, tax regulation, control of the spread of
farm pests, diseases and weeds, erosion of soil, floods, etc.
ORGANISATION AND STRUCTURE OF THE CARTOGRAPHIC AND GEODETIC AND CADASTRAL SERVICE OF THE CZECH REPUBLIC
CIP maintenance in the Czech Republic rests on the
cartographic, geodetic and cadastral service – the Land
Measurement (geodetic and cartographic) and Cadastral
Service, established pursuant to the Czech Law No.359/1992
on land measurement and cadastral bodies (as amended), that
not only establishes appropriate service units but also decides
on their activity and competence.3 The activity in the field of
cadastre of immovable property (CIP) is regimented by a
separate Czech Law No.344/1992 (as amended).
The structure of the Czech land measurement and cadastre
bodies is shown on Chart “Organisational structure of land
measurement and cadastral service of the Czech Republic”.
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• creation and operation of the planimetric and elevation base
(state geodetic grids);
• creation, updating and issue of the basic and specialised
public cartographic products, other publications;
• standardisation of names of unpopulated geographic points
on the territory of the Czech Republic, names of populated
localities and other geographic points beyond the Czech
borders;
• creation and maintenance of an automated information
system of geodesy, cartography and CIP of the Czech
Republic;
• approval of documentation upon the results of cartographic
and geodetic activity.
(b) coordinates scientific research in the field of geodesy,
cartography and cadastre;
(c) ensures and coordinates international cooperation in the
field of geodesy, cartography and CIP;
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Czech land measurement and cadastral department
ČÚZK performs the following tasks:
(a) provides for uniform performance of the following
activities:
• maintenance of CIP of the Czech Republic;
(d) guides land management and cadastre offices;
(e) maintains the central cadastral database, maintained on
the national scale using computer means and providing data
remotely (via the Internet);
(f) resolves disputes in the field of cartographic and
geodetic activity;
(g) approves standardised names of geographic points and
cadastre territories;
(h) decides on cancellation of decisions of land
management departments;
3
Some provisions of the Law were later updated by Czech Laws No.107/1994, No.200/1994, No.62/1997, No.132/2000, No.186/2001, No.175/2003,
No.499/2004 and No.365/2006.
RAZUMKOV CENTRE
67
LAND REFORM, CARTOGRAPHIC, GEODETIC AND CADASTRAL SERVICES IN CZECH REPUBLIC
(i) appoints the person responsible for basic and specialised
public cartographic products;
(j) issues and cancels permits to activities subject to
licensing, approves results of cartographic and geodetic works;
(k) provides for organisation and conduct of professional
tests for occupational fitness;
(l) registers persons licensed to perform cartographic and
geodetic works;
(m) issues basic public and specialised cartographic
products;
(n) perform other tasks in the field of geodesy, cartography
and CIP, including for its development.
Cadastral offices
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Land measurement department
Perform the following tasks:
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(а) public operation of CIP;
(b) maintenance of planimetric and elevation geodetic grids
and fine grids;
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(c) review of violations dealing with the Cadastre;
(d) approval of changes in local geographic names and
support for the activity of standardisation of geographic names;
(e) approval of changes in the borders of cadastral
territories;
(f) maintenance of basic public cartographic materials,
including SM5 (state map of the Czech Republic 1:5000);
(g) other tasks in the field of geodesy, cartography and
cadastre set before them by ČÚZK.
Land measurement and cadastral inspectorates
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Performs the following tasks:
(а) creates and operates the State planimetric and elevation
base;
(b) decides on erection, movement or removal of points of
the State planimetric and elevation base;
(c) maintains the main base of geographic data of the Czech
Republic (ZABAGED);
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Perform the following tasks:
(d) issues basic and specialised public cartographic
materials;
(а) control the Cadastre observance by state cadastral
offices of the Czech Republic;
(e) maintains the database of the planimetric and elevation
base (in conventional technical units, i.e.. triangulate sheets,
50х50 km afield);
(b) check the results of cartographic and geodetic works
used for the Cadastre and public cartographic product
maintenance;
(f) manages the Central Archives of Land Measurement and
Cadastre, as specialised archives;
(c) submit proposals to ČÚZK concerning: measures at
remedy of drawbacks revealed in course of control; cancellation
of permits to completion of the results of cartographic and
geodetic works;
(g) performs geodetic and cartographic operations on the
state border;
(h) examines violations in the field of geodesy, cartography
and cadastre within the limits of its competence;
(i) performs other tasks in the field of geodesy, cartography
and cadastre set before it by ČÚZK.
68
(d) decide on cassational appeals against CO decisions;
(e) examine violations in the field of geodesy, cartography
and cadastre;
(f) perform other tasks in the field of geodesy, cartography
and cadastre set before them by ČÚZK.

Whole journal

Transkript

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