Chernivtsi: the Legal position of the notary chamber of Ukraine No. 1 of 24 may 2016
On the application of legislation in force in the transmission of notaries registration of cases, documents issued, drawn up or received by them during the state registration of real rights to real estate entities the state registration of rights that ensure their maintenance. Guided by the Law of Ukraine "On notary", the Charter of the Notary chamber of Ukraine and the needs of society that emerged in the field of extrajudicial regulation of civil relations and for the effective implementation of the tasks entrusted to self-governing professional organization of notaries, Notary chamber of Ukraine elaborates the legal position and specific mechanisms for the settlement of problematic issues in notarial practice. The aim of the developments of the legal positions is obtaining common practices for the implementation and protection of rights and legitimate interests of individuals – of the parties involved and protection of the rights of notaries in the exercise of their professional activities and perform other duties according to the legislation of Ukraine. In connection with the entry into force of the new Law of Ukraine "On state registration of real rights to immovable property and their encumbrances", which contained the Law of Ukraine "On amendments to the law of Ukraine "On state registration of real rights to immovable property and their encumbrances" and other legislative acts of Ukraine regarding the decentralization of powers on state registration of real rights to immovable property and their encumbrances" dated 26.11.2015 No. 834-WHIP, prior to the adoption of a number of relevant sub-legal acts, in particular the Procedure for the formation and storage of registration Affairs (according to paragraph 5 of article 17 of the Law of Ukraine "On state registration of real rights to immovable property and their encumbrances" in the current edition, then – the Law), you must pay attention to the following. Paragraph 8 of article 2 of the Law the registration file is defined as a set of documents in paper and electronic form, submitted for the state registration of rights and formed in the process of state registration of rights. Business registration in paper form includes the documents on the basis of which made the information in the State register of rights and other documents received and generated during the state registration, are placed in the order they are received and numbered. Registration in paper form is assigned a registration number of the immovable property. The registration file in electronic form consists of documents generated using the software of the State register and electronic copies of the documents filed or scanned by the statements in the sphere of state registration of rights. The registration file in electronic form is stored in the State register of rights in REM. According to article 17 of the Law the registration file is generated (in the sense of the beginning of the process, because the registration file will be formed an indefinite period of time, the object will change, the owners will change, etc., until its closure) in paper form after the opening section on the immovable property in the State register of rights, and the including of information on property rights to immovable property and their encumbrances about the objects and subjects of these rights and maintained throughout the lifetime of the object. Under section 9 part 3. article 10 of the Law the powers of the state Registrar include development and maintenance of registration of cases in paper form. However, registration of cases in paper form only to state registrars, who are in labour relations with the Executive bodies of city councils of cities of regional and/or Republican of Autonomous Republic of Crimea importance, Kyiv, Sevastopol city, district, district in cities Kyiv and Sevastopol state administrations at the location of the relevant property. Part 4 of article 17 of the Law provides that the state Registrar, who is not in employment relations with the Executive bodies of city councils of cities of regional and/or Republican of Autonomous Republic of Crimea importance, Kyiv, Sevastopol city, district, district in cities Kyiv and Sevastopol state administrations and conducted state registration of rights, provides for the transfer of registration of cases in paper form or documents issued, drawn up or received by it during such registration, subject to the relevant state registration of rights, which provides registration of cases in paper form. The procedure for the formation and storage of the registration cases determined by the Ministry of justice of Ukraine (paragraph 5 of article 17 of the Law), however, this Procedure has not been adopted. Paragraph 25 of the procedure of state registration of real rights to immovable property, approved by the Cabinet of Ministers of Ukraine from 25.12.2015 No. 1127 (further — the Order No. 1127), provided that the registration to the appropriate case shall be attached the following documents: * a copy of the application, acceding of the documents submitted for state registration of rights, with the relevant information of the applicant about the receipt of documents in full; * copies of other declarations made to the notary; – the documents confirming payment of the administration fee and/or payment for the provision of information from the State register of rights (except as provided for in the second paragraph of paragraph 24 of this Order); – other documents, which were obtained in paper form by the state Registrar during the examination of an application and are not refundable to the applicant; – card applications — in the case of their formation. Presentation to the notary public for the state registration of rights to immovable property the applicant copies of the documents based on which set the identity of the applicant, checks the credentials of the representative, documents to check the legal capacity of legal persons, copies of the documents required for state registration of real rights to real estate (provided for by article 27 of the Law of Ukraine "On state registration of real rights to immovable property and their encumbrances" and the Order ¹1127 PP 40-73), is not provided. Accordingly, the notary requires the submission of such copies by the applicant. Of documents required for state registration of real rights to real estate (provided for by article 27 of the Act and Order No. 1127 (p. 40-73), the notary makes electronic copies and places them in the appropriate section of the State register of rights to immovable property, the possession of such documents is provided only in electronic form in the Registry. However, it should be noted that no changes have been made to adapt number of legal acts in this regard, in particular, the Order of conducting the state register of rights to immovable property, approved by the decree of the Cabinet of Ministers of Ukraine of 26.10.2011, No. 1141 (hereinafter — Order ¹1141), p. 56 which provides a more extensive list of documents to be included in the registration file. For a transitional period, until adoption of legal acts for the settlement of this question (given the current version of Order No. 1141), update the software of the State register of rights and in order to adequately protect the information, familiarizing the notary documents of the registration of deeds certified true copies of documents on which basis establishes the identity of the applicant, checks the credentials of the representative, copies of the documents required for state registration of real rights to immovable property, can not be considered a violation of the law on state registration of real rights to immovable property and their encumbrances, and cannot be the basis for refusal in adoption subject to state registration, shall maintain the registration of cases from lawyers. However, the subjects of the state registration of the rights entrusted with the duty of keeping the register of cases can be brought against such requirements for notaries. A printout of the notary documents generated by the State register of rights to immovable property, Order No. 1127 is not provided. And because include such documents as required, the approximate list of documents transmitted by the notaries to the subject of state registration of rights, provides for the registration of cases is not possible. Pursuant to article 22 of Order No. 1127 information from the State register of rights issued by a notary at the request of the applicant in paper form by printing using software for maintaining the State register of rights on sheets of paper of A4 size (210 x 297 mm) without the use of special forms, affixing signature and seal of the state Registrar. Order No. 1127 you cannot print this information in all cases (only at the request of the applicant) in duplicate. However, until the program updates the State register of rights to immovable property, which will allow notaries to get this information placed on the web portal of the Ministry of justice to the applicant with a view to its safe and due to the fact that in the case of providing information in the form of reference information in accordance with applicable software DRRP, the document is not displayed in the "documents" electronic statements, notaries such information may help to print two copies, one of which transfer together with the registration documents of the case to the appropriate entity of state registration of rights, ensures the implementation of registration Affairs. If the notary has carried out the opening section with respect to one immovable property and made several consecutive registration actions in respect of such entity (registration of rights and encumbrances), a registration matter is referred to one inventory of the documents presented in the order they are received. Regarding the cover letter (Annex 1) The cover letter is a notary in 2 copies (one is passed to the subject of state registration of rights, ensures the implementation of registration Affairs at the place of location of immovable property and the other remains in the notary No. 01-30). According to the inventory of the submitted documents (Annex 2) According to the p. p. 2.3 p Of Order No. 111/5 to documents which are submitted to the state registration authority of rights at the place of location of immovable property, the attached list of contents, which must contain a complete list of documents that are transmitted, indicating the number of sheets of each document, surname, name and patronymic of the state Registrar of rights to immovable property (hereinafter – state Registrar), which transmits these documents, and povnet the name of the relevant body of state registration, name of the notarial office or notarial district name. Description signed by the state Registrar and sealed (Appendix 2). The description is drawn up in 2 copies (one is passed to the subject of state registration of rights, ensures the implementation of registration Affairs at the place of location of immovable property and the other remains in the notary No. 01-30). For confirmation of transmission of documents subject to the state registration of rights, ensures the implementation of registration Affairs In the case of transmission-reception of documents on purpose: – the state Registrar receives the documents, affix signature in peddling the book for the local correspondence (case No. 01-28 according to the nomenclature). When sending a document by registered mail, a shipping receipt, notification of delivery to the addressee attached to the documents of the case of the notary No. 01-30. Regarding the scanning of documents Of documents required for state registration of real rights to immovable property under article 27 of the Law of Ukraine "On state registration of real rights to immovable property and their encumbrances" and the Order ¹1127 (p. 40-73), the notary makes electronic copies and places them in the appropriate section of the State register of rights to immovable property, which are only available in electronic form in the Registry. The scanning of the documents, which establishes the identity of the applicant, checks the credentials of the representative, receipts, is not provided. Due to the fact that to download documents on to the server at a specific time, it is necessary to follow closely the attachment of the scanned documents and check their availability in the State register of real rights to immovable property in the Commission of registration actions. Pick-up by the notaries of the registration of deeds (documents) Paragraph 25 of the Order No. 1127 provides that to the appropriate business registration documents are attached, and in the case of the state registration of ownership with the opening section in the State register of the rights generated the registration file, the notary sends to the subject of state registration of rights, ensures the implementation of registration Affairs at the location of immovable property in the procedure established by the Ministry of justice. Due to the fact that this order of transmission to the execution of this provision have not yet been adopted, and that is the current Procedure of transfer of documents in the sphere of state registration of real rights to immovable property and their encumbrances approved by the order of Ministry of justice of Ukraine from 20.01.2012 No. 111/5 (further — the Order No. 111/5), notaries carry out the transfer of registration of deeds and documents subject to the state registration of rights, provides for registration of cases at the location of immovable property in accordance with the requirements of Order No. 111/5 in the part not contradicting to the Law and regulations on state registration of real rights to real property, later. According to the paragraph Of Order No. 111/5 documents in the sphere of state registration of the rights transferred to the subject of state registration of rights, ensures the implementation of registration Affairs at the place of location of immovable property on purpose with a list of attachments or by sending a registered letter (subject to the requirements of the Order of the State Committee of communications and Informatization of Ukraine of 12 July 2002 N 139). In connection with the liquidation of the state registration of the services in the period up to 1 April 2016 notaries should be borne in mind that according to article 17 of the law of keeping the registration file in paper form is intended only for registrars who are in labour relations with the Executive bodies of city councils of cities of regional and/or Republican of Autonomous Republic of Crimea importance, Kyiv, Sevastopol city, district, district in cities Kyiv and Sevastopol state administrations at the location of the relevant property. These registrars need to transfer the registration of deeds and documents by notaries. Regarding the timing of the transfer of notaries registration cases For the period transfer of registration of deeds or documents for entry into the registration of deeds by notaries is not provided. To resolve this issue through the establishment of terms in the relevant normative - legal acts with the aim of preventing the accumulation of registration of the deeds at the notary it is advisable to carry out this transfer in a reasonably short time to prevent accumulation of documents. Concerning the formation of notaries in the case 01-30 In accordance with standard and individual items in state notary offices and private notaries have the case number 01-30 "Documents (requests, demands, statements, statements, information statements, etc) regarding state registration of real rights to immovable property and their encumbrances and the provision of information according to the State registry of real rights to immovable property" with a shelf life of 3 years. In case number 01-30, the notary leaves with the following documents: * the second copy of the cover letter; * the second copy of the inventory of transferred documents; * a shipping receipt and return receipt (in case of sending by mail). Concerning the formation and registration of notaries registration cases Paragraph 25 of the Order No. 1127 provides that to the appropriate business registration documents are attached, and in the case of the state registration of ownership with the opening section in the State register of rights — registration file generated the notary sends to the subject of state registration of rights, ensures the implementation of registration Affairs at the location of immovable property in the procedure established by the Ministry of justice. It is necessary to distinguish between the formation of the registration file" and "registration of deeds" as part of the process of its formation. Formation of the registration dossier is notaries public in paper and electronic form and is a result of the implementation of registration procedures and operations in the State register of real rights to immovable property. In this part the registration of the case is formed and exists before closing of the registration cases only in electronic form. The registration case is the final stage of its formation to archival storage. has a specific Order of the archive registration cases, the approved order of the Ministry of justice of Ukraine dated 14.11.2011 No. 3319/5 (hereinafter — Order ¹ 3319/5), the procedure of transferring to the archive and archiving (further — archive) is CLOSED in the registration of cases concerning immovable property resulting from the activities of the bodies of state registration of rights. The registration file shall be closed in accordance with article 14 of the Law in the following cases: * in the event of destruction of property; * in case of division, Union, real estate or separation of share from the immovable property. Order No. 3319/5 provides that closed the registration file must be formed in compliance with the requirements established by law. The design of the closed registration of the case provides for the numbering of sheets in the case, drafting the internal inventory of documents of the case, assurance caption of the case, back cover case, the cover design (title page) the case. After the expiration of five years after closing of the registration of the case the state Registrar of rights to immovable property transfers it for storage in an archive for subsequent storage and use. Accordingly, the present subjects of the state registration of rights, capable of maintaining the registration of cases requirements for notaries to the numbers of the registration documents of the case, drawing on a separate sheet internal inventory, page labels and back cover in hard cover in accordance with the requirements of Order No. 3319/5, – are unfounded. The inventory of transferred documents (attachments) cannot be identified with the internal inventory of documents of the registration of the case, as they are different documents on the legal status and content. On the organization of the notary transfer documents for registration Affairs in the case of the transfer of tspau Item 19, the Approximate position of the centre of administrative services, approved by resolution of the Cabinet of Ministers of Ukraine from 20.02.2013 No. 118, provides that the time of reception of subjects of calls to the centre at least six days a week and seven hours a day without a break for lunch and is General (common) for all administrative services provided through the center. Center at least two days per week shall receive of subjects appeals to 20 hours. You need to pay attention to the fact that the notary is not subject of an application to the transmission Affairs and has the right to appeal to the appropriate of tspau on the transfer of the registration of deeds and documents, at any time without registration in the electronic queue and coupons. On the return of the documents transmitted by the notaries of the subjects of the state registration of rights, capable of maintaining the registration of cases Order No. 111/5 does not include the right of the subject of state registration of rights, provides for the registration of deeds to return the registration of deeds and documents transmitted by the notaries. In accordance with the PP. 2 paragraph 4 of the Order No. 111/5 subject of state registration of rights in case of inconsistencies between the documents, which were referred to by a notary and a list of attachments to them or receive not in full volume of documents that was issued to, issued or received during registration, refers to a notary that he passed the documents with a letter giving in full the documents issued, prepared or received during registration. In the application p. 2 p. 4 Order No. 111/5 subjects of state registration of rights, which ensures maintenance of registration cases, it is necessary to consider the requirements of Order No. 1127, which does not contain the submission requirements applicants duly certified copies of documents on which set the person the authorization is checked, documents required for registration of rights, printed information when you search, decision, information from the registry. Return of documents to the notaries mail communication has risks of damage or loss of documents which cannot be recovered. Notary chamber of Ukraine considers it necessary to note that the above legal position generated within the powers of NHRIs for compliance with the requirements established CH.part 1, 4 of article 16 Law of Ukraine "On notary" and p. 2.3, 2.4 of the Charter of the Notary chamber of Ukraine and cannot be taken as an interpretation of the current legislation of Ukraine. The legal position applies to the legislative regulation of questions of formation, storage, registration of cases and their transfer notaries to the subjects of state registration of rights, capable of maintaining the registration of cases. Application: 1. Sample cover letters on 1 sheet. * Sample descriptions of 2 of the arc. (The form of a state notarial office, private notary) No. The name of the subject of state registration of rights, providing litigation On the transfer of the registration of deeds/documents to be attached to the registration thing On the implementation of part 4 of article 17 of the Law of Ukraine "On state registration of real rights to immovable property and their encumbrances", paragraph 25 of the procedure of state registration of real rights to immovable property and their encumbrances approved by the resolution of the Cabinet of Ministers of Ukraine from 25.12.2016 No. 1127, paragraphs 3, 4 Order of transmission of documents in the sphere of state registration of real rights to immovable property and their encumbrances approved by the Order of the Ministry of justice of Ukraine from 20.01.2012, No. 111/5, give the registration of deeds/documents on state registration of rights and /or encumbrances on immovable property, type of real estate: residential home; location (address): city Rivne, a street the White house. 4 (four); the registration number of object in DRC: 5555555555555. Application * Description__ (_____ ) leaves. * Documents:_ (______ ) documents___ (______ ) sheets. The state Registrar Private/public notary _____________ T. S. Dmitruk No. The name of the document The number sheets DESCRIPTION the uploaded documents The state Registrar Private/public notary Rivne region T. S. Dmitruk Regulations governing these issues:___________________________________________ The law of Ukraine of 01.07.2004 ¹ 1952-IV "On state registration of real rights to immovable property and their encumbrances"; The procedure of state registration of real rights to immovable property, approved by the decree of the Cabinet of Ministers of Ukraine from 25.12.2015 No. 1127 "On state registration of real rights to immovable property _________________________________ and______ their______________ encumbrances"; The order of conducting the state register of rights to immovable property, approved by the decree of the Cabinet of Ministers of Ukraine of 26.10.2011 ¹ 1141 "On approval of Procedure of conducting the state register of rights to immovable property"; The procedure for the transfer of documents in the sphere of state registration of real rights to immovable property and their encumbrances approved by the order of Ministry of justice of Ukraine of 20.01.2012 No. 111/5 "On approval of the Procedure of transmission of documents in the sphere of state registration of real rights to immovable property and their encumbrances"; The decree of Cabinet of Ministers No. 1242 dated 30.11.2011 "On approval of the typical instruction on office work in Central organs of Executive power. The Council of Ministers of the Autonomous Republic of Crimea,local Executive bodies", The instruction on office-work according to addresses of citizens in bodies of state power and local self-government, associations of citizens, enterprises, institutions, organizations irrespective of forms of ownership, mass media, approved by the resolution of the Cabinet of Ministers of Ukraine from 14.04.97 No. 348 (as amended), DSTU 4163-2003 “State of the unified system of organizational and administrative documentation. Requirements for execution of documents” (more – DSTU 4163-2003). This was reported in the Chernivtsi city Council.Ïåðåâåäåíî ñåðâèñîì "ßíäåêñ.Ïåðåâîä÷èê": translate.yandex.ru.
Source: http://uzinform.com.ua/
