We regularly hear about the raiding of agricultural enterprises, the seizure of crops or machinery. However, the so-called "Black raiding", when criminals forged documents and interfered in the work of state registers, is becoming less and less. Easier and more legal to persuade landowners to transfer their plots to another tenant. And, by the way, the farmer can unknowingly assist such raiders.
He blames himself!
Lease relations between farmers and landowners are known to be based on trust and mutual support. Therefore, if the landlord constantly supports the village, helps with its improvement, gives work to the peasants and creates any additional value for them, in addition to the usual rent, the landowners themselves will defend their tenant from raiders.
Conversely, if a tenant's representative comes to the village once a year just to give everyone rent, then we should not expect any additional trust and additional support from the landowners. It will be enough to offer a competitor a higher rent, and the landowner will agree to work with him.
Another important point: most of the relationship between the tenant and the landowner is governed by oral agreements. Lease agreements are often concluded "just in case", and they contain many shortcomings. Competitors find farmers who are dissatisfied with the current tenant and use the shortcomings of leases to cancel them in court.
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It is quite common for lease agreements to be signed by their relatives instead of old landowners. Many tenants are quite careless about this practice. However, the lease agreement in this case is very easy to invalidate.
The courts establish that the contract was concluded on behalf of the site owner, but signed by another person. This can be confirmed by the conclusion of the forensic handwriting examination. Therefore, the contract is declared invalid.
Here, some farmers rely on the statute of limitations: as a general rule, you can go to court within 3 years from the date of the violation, which is the basis for the appeal. However, in the case of signing the contract by another person instead of the landlord, the statute of limitations should be calculated not from the moment of concluding such a contract, but from the moment when the tenant learned about its existence. Even the argument that the landowner received rent for three years before going to court often does not save the tenant. This position is set out in the decision of the Supreme Court of Ukraine in the case №6-48tss15 from 22.04.2015.
Therefore, it is very important that the lease agreement is signed by the owner of the land plot, and not by his daughter, son, mother, aunt or any other relative.
Where is the money for rent?
Another popular reason for terminating a lease is non-payment of rent.
In fact, the tenant may pay the rent, but do not fix it properly. Often the rent is paid in kind, which is not fixed properly.
The owner of the site can take advantage of this and file a lawsuit to terminate the lease agreement.
It should be borne in mind that even if the landlord does not show up for rent, it does not release the tenant from the obligation to pay it. Such a position is contained in the decision of the Supreme Court of Ukraine in case №126 / 1553/17 of June 27, 2018. At the same time, courts terminate lease agreements only if the non-payment of rent occurs systematically (two or more times), in particular, such a position was expressed by the Supreme Court of Ukraine in the decision in case №362 / 5740/15-ts of 28.09.2016.
Also note the position of the Supreme Court in case спра383 / 1213 / 15c. The court noted that the rent should be paid monthly, unless the parties to the lease agreement agreed otherwise. Failure to pay the rent is a sufficient ground for early termination of the lease agreement.
Therefore, it is necessary to approach the formation of the provisions of the agreement on the procedure and terms of payment of rent. You also need to record all payments - both cash and in kind.
If the owner has changed
After the death of the owner of the land, the heirs often want to return the leased land. This may be due to the desire to cultivate the land themselves or with the intention to transfer the land to another tenant on more favorable terms.
The Supreme Court in its ruling in case №582 / 1132/17 of 14.03.2018 stated that if the parties to the contract did not clearly specify that the basis for termination of the lease is the transfer of ownership of land to another owner, the contract can not be torn on this ground.
Therefore, neither the death of the owner, nor other grounds for change of ownership of the land is an automatic ground for termination of the lease agreement.
When the contract was superfluous
For the convenience of cultivating the land, farmers working within one village or district can exchange land plots. Sometimes it's just conceptual arrangements. However, it happens that agricultural producers enter into sublease agreements for land plots. They do this without the consent of the owners of these plots. This directly contradicts the requirements of the law. More often, companies enter into contracts for the provision of tillage services, joint activities and other similar agreements.
If such an agreement becomes the subject of a court appeal, the courts find out the true nature of the legal relationship between its parties. If the land is actually subleased, the courts invalidate both the lease agreement and such an agreement on joint activities. Thus, the Supreme Court of Ukraine in its decision in the case №6-166tss13 from 12.02.2014 noted that the involvement of third parties in the cultivation of land and payment of rent to the landlord with the termination of the tenant's economic activity for the direct intended use of the leased land may be carried out by the lessee without the consent of the lessor.
And already in 2018, the Supreme Court in its decision in the case № 133/600/16-ts of 28.12.2018 noted that if the contract for the provision of services contains conditions for the transfer of the leased land, it is concluded in violation of the lease.
Therefore, when concluding agreements on joint activities or on the provision of land cultivation services, it is necessary to consider in advance whether they will then become the basis for the loss of the right to lease.
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As you can see, grounds to challenge the land lease agreement can always be found. In order not to lose their land, every farmer needs to be more responsible in the lease relationship. It is necessary not only to establish friendly relations with landowners, but also to record all agreements and legal actions on paper.
Andriy Gevko, lawyer, partner of BARGEN law firm
AgroMarket newspaper, March 2019
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