A special permit for subsoil use (hereinafter also referred to as a permit) gives the right to use subsoil exclusively. In other words, it does not give the right to access the land within its boundaries.
If the subsoil user is not the owner or legal user of the land located within the permit boundary that belongs to him, then without the permission of its owner and/or legal user, he has no right to be on it and carry out any activities.
Registration of land ownership or the right to use a land plot
The subsoil user is obliged to register legal rights to the land plot located within the permit contour.
For this, you need:
to register ownership of land as a result of concluding civil law contracts with its owner (sale and purchase, barter, gift, etc.) and to carry out state registration of land ownership;
to register the right to use the land as a result of civil law contracts with its owner or user (lease, servitude, etc.). It should be noted that such rights are also subject for the state registration.
How to register land ownership or the right to use a land plot?
The answer to the question of how to formalise land ownership is either to acquire it by entering into civil law contracts or to acquire it on the grounds and in accordance with the procedure established by applicable law.
The procedure for registering land ownership is governed by the current legislation of Ukraine.
Civil law agreements regarding land plots are concluded between private law entities (individuals and legal entities) and public law entities (state authorities and local self-government bodies).
The conclusion of contracts for the sale, exchange or donation of privately owned land plots is a private law relationship where the parties are equal and therefore they decide with whom, on what terms and whether to interact at all. Often, the reluctance of owners to alienate their land makes it impossible to exercise the right to use subsoil.
The most popular way to formalise land use rights is to lease land. Usually, state and municipal land is leased, as this form of relationship is not interesting for individuals and legal entities under private law, as in most cases, the land plot is destroyed due to mining activity.
A new way to formalise legal rights to land is establishment of a land servitude for subsoil use, which is enshrined in Article 66 (4) of the Land Code of Ukraine and other provisions of the law.
Despite the specifics of activities in the field of subsoil use, the legislator decided to use the servitude in a role that is not inherent in this institution.
A significant benefit of using the servitude is that the subsoil user is not obliged to change the designated purpose of the land plot.
However, the institute of land servitudes for subsoil use is an insufficiently regulated procedure, since the Law of Ukraine №402-IX of 19.12.2019 introduced the relevant amendments to the Land Code of Ukraine, the use of this structure is more and more popular.
What is the purpose of land plots?
According to the requirements of Article 91 of the Land Code of Ukraine, owners of land plots are obliged to ensure that they are used for their intended purpose.
However, in Article 66 of the Land Code of Ukraine an exception to this rule is made, since the establishment of land servitude for the above purposes related to the use of subsoil is carried out without changing the designated purpose of such land plots.
The above information that if a subsoil user registers ownership rights to land other than industrial land in a manner other than the establishment of an servitude, then before commencing activities related to the extraction of minerals, he will be obliged to ensure that the designated purpose of such land plot is changed.
Should a person wishing to participate in an electronic auction for the sale of a permit identify the owners and legal users of the land plot located within the permit boundary?
No doubt, yes, because the permit grants the right to use subsoil exclusively and does not give the right to access the land plot located within its contour.
The presence of a significant amount of privately owned land within the subsoil plot contour and proximity to settlements may make it impossible to develop the field.
It means, without access to land, the value of the permit itself is lost, and any investment in permits will be in vain.
In addition, it should be noted that there may be environmental, sanitary and other restrictions on the conduct of activities within the subsoil area.
Overlaying the coordinates of a subsoil plot on geographic maps with different layers allows you to really assess the prospects for its development and the challenges that will need to be overcome after acquisition.
How we can help?
We will objectively analyse any object in accordance with the request received and honestly tell you about the prospects for its development or the challenges that will need to be overcome after its acquisition.
As a result of our cooperation, we will provide professional advice on the advantages and disadvantages of acquiring a particular object, as well as a roadmap with a specific algorithm of actions that will allow you to achieve the desired result and start a business in the extractive industry.
