Contractual grounds for the emergence of housing ownership

The issues of possibility/impossibility of concluding this agreement through a representative also deserve special attention. In particular, R.A. Maidanyk, V.V. Vasylchenko believe that the inheritance agreement can be concluded only personally by an individual with full civil capacity [34; 35]. According to other scholars, on the contrary, it is allowed to conclude this agreement through a representative, because «according to the contractual nature of transactions, the conclusion of an inheritance contract is possible through a representative, at least the Civil Code of Ukraine does not prohibit it» [36].

The conclusion of an inheritance agreement, under which the housing is transferred into the ownership, cannot be carried out through a representative, because the alienator does not care who will be the purchaser of his or her housing. Only the alienator alone can ensure it most completely. Even if it is impossible to search for a purchaser unassisted, one should not involve a representative, although the law does not explicitly prohibit it. To confirm this, it is advisable to cite the position of O.V. Onishchenko, who believes that «it can be assumed that the inheritance agreement may be concluded in the interests of a minor, juvenile, incapacitated and incapable person, subject to the rules of the Civil Code of Ukraine on transactions with persons without full capacity», and suggests «to solve this issue at the legislative level by, for example, indicating that the alienator can be an individual regardless of age and state of health (following the model of a perpetual maintenance agreement)» [37].

In view of the ongoing discussion on the recognition of a succession agreement as a unilateral or bilateral agreement, the inheritance agreement is bilateral, as the rights and obligations under it arise for both the alienator and the acquirer. In particular, the acquirer, apart from the rights (ownership of the alienator's property, the right to demand termination of the contract in case of impossibility to execute the alienator's orders), also has obligations (to execute the alienator's orders and perform certain property or non-property actions). The alienator, in addition to his rights (to make certain orders, require the acquirer to perform certain conditions of the contract actions of property or non-property nature), also have responsibilities (the obligation not to alienate property defined by the inheritance agreement, the obligation to ensure the safety of this property and proper treatment). The bilateral nature of this agreement is also evidenced by the prohibition on the alienation of housing, including by will, which constitutes the subject of an inheritance agreement. In addition, the bilateral binding nature of this agreement is evidenced by the content of Article 1308 of the Civil Code of Ukraine Ibidem, 2003. ^{Civil Code of Ukraine. (2003, January). Retrieved from} https://zakon.rada.gov.ua/laws/show/435-15#Text., under which the inheritance agreement may be terminated by the court at the request of the alienator in the event of non-performance of his or her orders by the purchaser or at the request of the acquirer in case of impossibility to perform the alienator's orders. Notably, in both cases the termination of the inheritance agreement is possible only in court. It is the court that must establish the fact of violation of the inheritance contract or the impossibility of its execution. Thus, due to the bilateral feature, the inheritance agreement cannot be terminated or changed unilaterally during the life of the alienator, as is the case with a will [30]. As for the payment-related feature of the inheritance contract, almost all scholars refer to this agreement as paid agreement, as the purchaser receives the property specified in the agreement (in this case - housing), and the alienator receives results of certain actions of property or non-property nature on the part of the acquirer. It is no coincidence that this feature allows to distinguish the inheritance agreement from the will and the perpetual maintenance agreement.

The purchaser's housing ownership on the grounds of the inheritance agreement emerges from the moment of the state registration of such ownership. This conclusion follows from the analysis of Articles 334, 1302, 1307 of the Civil Code of Ukraine. In particular, according to Article 1302 of the Civil Code of Ukraine, the purchaser under the inheritance agreement acquires the ownership of housing of the alienator in case of his or her (alienator's) death. However, given the fact that housing is real estate, the ownership of which is subject to state registration in accordance with the procedure prescribed by law, the ownership, according to Part 4 of Article 334 of the Civil Code of Ukraine, arises from the moment of such registration. In addition, Article 1307 of the Civil Code of Ukraine prohibits the alienation of property (housing), which is the subject of the inheritance agreement, until the death of the alienator. That is, the possibility of housing ownership under the inheritance agreement earlier than from the moment of death of the alienator is excluded. Therefore, considering the need for state registration of ownership of housing as a real estate, the right of ownership of the purchaser arises from the moment of state registration of the right, and not from the moment of death of the alienator. Thus, the above suggests that the inheritance agreement, under which a person may have ownership of housing, is a contract of transfer of ownership of property, paid, bilateral (bilaterally binding), fiduciary (based on trust between the parties), aleatory (the purchaser cannot be sure that the actions of property or non-property nature committed by them will be equivalent to the value of the received housing), and is of a personal nature.

Features of conclusion of the hereditary agreement by spouses should also be considered within the framework of this study. Thus, an inheritance agreement can be concluded by one or both spouses. In this case, the subject of the inheritance agreement may be housing jointly owned by the spouses, as well as housing that is the personal private property of either of them. As for the conclusion of an inheritance agreement by the spouses, the subject of which is housing as an object of joint ownership, one should be bear in mind that when making any transaction concerning the joint property of the spouses which requires notarisation, the consent of the other spouse must be established. If the contract was concluded without the consent of the other spouse, it may lead to a challenge to its validity. However, the inheritance contract may be certified without the consent of the other spouse, if the title document indicates that the housing specified in it was acquired prior to the registration of marriage, or during the marital relationship, but on terms determined by the agreement concluded between the spouses, or by inheritance, as well as in cases where the one of the spouses does not reside at the property and his or her place of residence is unknown. A copy of the court decision, which has entered into force, must be submitted to confirm this circumstance.

If the spouse as an alienator does not agree with the inclusion of jointly acquired property in the inheritance agreement or the spouses do not agree on this property, one of the spouses may establish its share in the joint property in court and then enter into a separate inheritance agreement. The inheritance agreement can also establish that in case of death of one of the spouses the inheritance passes to the other, and in case of death of the other spouse his or her property only then passes to the purchaser under the agreement. In the presence of a marital agreement, which defines the rights and obligations of the spouses to housing purchased both before marriage and during the latter, received as a gift or inherited by one of the spouses, upon certifying the inheritance agreement, the notary must be guided by the terms and conditions specified in the marital agreement. If the alienator violated the terms and conditions of the previously concluded marital agreement upon concluding the inheritance agreement, then this serves as the basis for rendering such agreement null and void.

In terms of the legal nature of the marital agreement as separate grounds for the emergence of housing ownership, it is appropriate to note the lack of a unified opinion in the doctrine of private law. The most common opinion is that the marital agreement, despite several specific features, belongs to the civil law contracts and is subject to general rules for transactions [38-40]. A detailed analysis of this contractual form, the conditions of its validity, the grounds for its invalidation, and the procedure for its conclusion and performance suggests that the general civil law constructions of contract law are used in this case. Therefore, it is necessary to agree with the opinion of those scholars who refer the marital agreement to civil law contracts. In general, the marital agreement is the most complex and can contain a variety of terms and conditions relating to the property of the spouses or the provision of maintenance to one of them; unlike all other agreements, marital agreement can be concluded in respect of the future property of the spouses; the subjects of the marital agreement may be not only the spouses, but also the persons who have applied for registration of marriage. In addition, a marriage contract can serve as grounds for joint ownership of the spouses if it stipulates that the spouses become co-owners of housing, which prior to the marriage and marital agreement was in ownership of one of the spouses. Moreover, the joint housing ownership of the spouses acquired based on the marital agreement emerges from the moment of state registration of such ownership.

There is good reason that Article 94 of the Family Code of Ukraine Family Code of Ukraine. (2002, January). Retrieved from https://zakon.rada.gov.Ua/laws/show/2947-14#Text. stipulates the requirement that the marital agreement is to be concluded in writing and notarised. Notably, there is still a «cautious» attitude of the notarial community towards the marital agreement. As a result, there are cases of extortion to certify the relevant legal relations of other agreements (on the alienation of the share of one of the spouses in the joint ownership in favour of the other spouse without the allocation of this share, on the procedure for using property, on the allocation of a share of immovable property of one of the spouses from all property assets, on provision of maintenance, etc.), which forces persons wishing to enter into a marital agreement to bear considerable costs upon its execution. To prevent such abuse, the Law of Ukraine «On Notaries» Law of Ukraine No. 3425-XII “On Notaries”. (1993, September). Retrieved from https://zakon.rada.gov.ua/laws/show/3425-12#Text. obliges a notary to assist citizens in exercising their rights and protecting their legitimate interests. In particular, when certifying a marital agreement, the notary is obliged to explain to the parties the content and meaning of the marital agreement, the consequences of including certain terms and conditions therein, as well as to verify compliance with the law and the actual intentions of the parties.

Thus, among the grounds for the housing ownership, the marital agreement has a special place because: 1) it has the most complex nature and may contain various conditions relating to the property of the spouses or the provision of maintenance to one of them; 2) it may be concluded in respect of the future property of the spouses.

Conclusions

legal contract civil housing

Summarising the analysis of the contractual grounds for the emergence of housing ownership, it is appropriate to emphasise the feasibility of expanding the classification of contracts as grounds for the emergence of housing ownership, which is established in the doctrine of housing law, by supplementing the classification with such contractual forms as mortgage agreement, donation agreement, hire-purchase agreement, inheritance agreement, lease agreement, as well as a marital agreement. Thus, it is appropriate to supplement the system of agreements that mediate the transfer of ownership of housing as an object of ownership as follows: 1) housing purchase and sale agreements; 2) housing barter agreements; 3) perpetual maintenance agreements; 4) housing rent agreements; 5) housing gift agreements; 6) housing mortgage agreements; 7) housing donation agreements; 8) hire-purchase agreements; 9) hereditary agreements; 10) marital agreements; 11) construction agreements; 12) agreements on joint activities.

It is established that the exchange of housing and the housing barter agreement are not terminological inaccuracies; these contractual forms have different legal nature, because the barter agreement serves as grounds for housing ownership, and the housing exchange agreement serves merely as grounds of the right of use.

It is substantiated that the inheritance contract performs a double function, governing both the relations on the transfer of housing into ownership and the performance of actions, since under the inheritance agreement, the property is transferred to the acquirer in his or her ownership, and although these actions are no longer carried out by the alienator, but by other persons after the death of the alienator, the acquirer becomes the owner of the property alienated in his or her favour.

Thus, the issue of identifying new contractual grounds for the disappearance of housing ownership in general and the study of individual contractual grounds in particular is relevant and such that requires further substantial research.

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