How can a farmer not lose his land?

 We regularly hear about raids on agricultural enterprises, seizures of crops or machinery. However, the so-called "black raiding", when attackers forged documents and interfered in the work of state registers, is becoming less and less. It is easier and more legal to persuade landowners to transfer their plots to another tenant. And, by the way, the farmer can unconsciously assist such raiders.

It's my fault!

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 villagers and creates any additional value for them, except for the usual rent, the landowners themselves will defend their tenant from attack by raiders.

Conversely, if the tenant's representative comes to the village once a year just to give everyone rent, then there is nothing to expect from some additional trust and additional support from the landowners. It will be enough to offer a competitor a large 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. Leases often conclude "to be", and they contain many shortcomings. Competitors find peasants who are dissatisfied with the current tenants and use the shortcomings of leases to cancel them in court.

So whose signature?

It is quite common for lease agreements to be signed by their relatives instead of the old landowners. Many tenants are quite frivolous of this practice. However, the lease agreement in this case is very easy to invalidate.

The courts establish that the contract is concluded on behalf of the site owner, but signed by another person. This can be confirmed by the conclusion of a 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 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, and not 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 can pay the rent, but do not fix it properly. Often the payment is made in kind, which is not fixed properly.

This can be used by the landlord and file a lawsuit to terminate the lease. It should be noted that even if the landlord does not come for rent, it does not release the tenant from the obligation to pay it. This position is contained in the decision of the Supreme Court of Ukraine in case №126 / 1553/17 of 06/27/2018. At the same time, the courts terminate the 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 case 2362/5740/15-ts from 28.09.2016.

 Also note the position of the Supreme Court in case №383 / 1213 / 15c. The court noted that the rent must be paid monthly, unless the parties to the lease agreement have agreed otherwise. Non-payment of rent is a sufficient ground for early termination of the lease agreement.

Therefore it is necessary to approach cautiously to formation of provisions of the contract 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 land that is leased. This may be due to the desire to cultivate the land on their own 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 indicated that if the parties to the contract did not clearly determine that the basis for termination of the lease is the transfer of ownership of the 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 land is an automatic basis for termination of the lease agreement.

When the contract was superfluous

For the convenience of land cultivation, farmers who work 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 is directly contrary to the requirements of the law. More often, companies enter into contracts for the provision of land cultivation services, joint activities and other similar agreements.

If such a contract becomes the subject of a judicial 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 a joint venture agreement. 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 activities for the direct intended use of the leased land goes beyond 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 from 28.12.2018 noted that if the contract for the provision of services includes 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 weigh in advance whether they will then become the basis for the loss of the right to lease.

***

As we 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 renting land. It is worth not only to establish friendly relations with landowners, but also to record all agreements and legal actions.

Andrey Gevko, lawyer, partner of the law firm BARGEN

AgroMarket newspaper, March 2019