Sale on competitive basis of the lease right of a land plot of state or municipal ownership without carrying out its normative monetary valuation: the question of appropriate methods of protection

Abstract

The application of a specific method of protection of a civil right depends both on the content of the right or interest, the protection of which a person sought protection for, and on the nature of its violation, non-recognition or challenge. Such right or interest must be protected by the court in a manner that is effective, i.e. such that corresponds to the content of the relevant right or interest, the nature of its violation, non-recognition or challenge and the consequences caused by these actions.
At the same time, in court practice there are cases that the method of protection chosen by the claimant may be provided for by law or contract and/or be effective in protecting the claimant’s violated right, but it is still inappropriate in disputed legal relations. As an example, the situation with the protection of the state’s rights in the case of a sale by a local self-government body or a state authority on a competitive basis of the right to lease a plot of communal or state property without carrying out its normative monetary assessment.
In particular, conducting land auctions in the form of an auction for the realization of the right to lease of a land plot of state or communal property and concluding a land lease agreement without carrying out a normative monetary valuation of this plot contradicts the requirements of the current legislation of Ukraine, since the specified valuation is the basis for determining the amount of rent, as well as a necessary condition is that the rent specified in the contract corresponds to the acts of the civil legislation of Ukraine. This serves as a basis for invalidating the land lease agreement concluded as a result of the auctions and terminating the lease right for the land plot.
However, based on the results of the research, the author concludes that, taking into account the fact that the current legislation of Ukraine provides for a less burdensome way for the tenant to correct the committed violations (by making changes to the land lease agreement on the basis of the conducted normative monetary valuation of the land plot and bringing the terms of the agreement into line to acts of civil legislation), therefore, the method of protecting the rights of the state, which consists in depriving the tenant of the right to rent, is inappropriate due to the fact that it imposes an excessive individual burden on the latter and violates the principle of proportionality, enshrined in Art. 1 of the First Protocol to the Convention.