Relaunch of registers opens opportunities for new transactions

Background

For more than two months, the two core Ukrainian state registers – (i) the Unified State Register of Legal Entities, Private Entrepreneurs and Public Organisations (the “Corporate Register“) and (ii) the State Register of Proprietary Rights to Real Estate and its Encumbrances (the “Real Estate Register“) (collectively, the “Registers“) were not fully operative. In particular, possible corporate actions and respective registrations have been limited to very few types of allowed registrations, including incorporation of a charitable organisation, amending information on charitable organisation, changing director of a legal entity, changing registered office of a legal entity, incorporation of a new legal entity, registration of a private entrepreneur. At the same time, real estate transactions were fully blocked.

On 3 May 2022, this has changed with adoption of the Order of the Ministry of Justice of Ukraine No. 1760/5 “On Approval of the List of the Notaries Eligible to Perform Notarial Acts with Valuable Property during the Martial Law” (the “Eligible Notaries List“), which in its turn was adopted pursuant to the Resolution of the Cabinet of Ministers of Ukraine “On Amendments to Certain Resolutions of the Cabinet of Ministers of Ukraine on the Activity of Notaries and Functioning of Unified and State Registers Held by the Ministry of Justice during the Martial Law” No. 480, dated 19 April 2022 (the “Resolution“).

What has changed now?

Adoption of the Resolution and the Eligible Notaries List resulted in (i) reactivating most of the registration actions, however, still with certain restrictions, (ii) returning notaries to the list of authorised persons who can carry out registration actions during the martial law, (iii) limiting exterritorial approach in registration only to certain territories, i.e. those where active military actions take place, (iv) extending the duration of the “war-time requirements and prohibitions” applicability, which is now effective not only during the martial law but also one month after the date of its cancelation or abolition.

Here we provide a general overview, as well as practical list of the main reopened opportunities for corporate and real estate transactions.

“Valuable property” concept

Limitations on operation of the Registers connected with the Russian military aggression against Ukraine were initially imposed through the list of registration actions specifically allowed by the Ministry of Justice of Ukraine to be performed by the state registrars. The Resolution now changes the entire approach for notarial acts and operation of the Registers during the martial law. In particular, the concept of “valuable property” is being introduced. Respectively, the transaction (acts) with a valuable property can be split into several groups:

Corporate

• agreements on alienation of securities, corporate rights, including agreements on amendments to such agreements or their termination;
• certifying the authenticity of the signature on the acts of transfer and acceptance of the participatory interest (part of the participatory interest) in the charter capital of a legal entity;
• power of attorney for the right to manage and dispose of securities, corporate rights.

Finance

• mortgage agreements, assignment agreements under loan and / or mortgage agreements, agreements on satisfaction of the mortgagee’s claims;
• power of attorney for the right to access an individual bank safe.

Real estate

• agreements regarding alienation, separation (allotment) of real estate;
• agreements on lease (rent) and finance lease of a building or another capital structure for a term of three years and more;
• agreements on establishment of trust ownership of real estate.

Private (family) issues

• inheritance agreements;
• agreements on determining the size of shares in the right of joint ownership, agreements on division of joint property of the spouses (allocation);
• issuing certificates of ownership of the share in the joint property of the spouses (former spouses) on the basis of their joint application, certificates of acquisition of property by public auction (electronic auctions), including those that did not take place.

“Eligible notaries” concept

The notaries that have passed eligibility check by the Ministry of Justice based on “good faith” criteria and thereupon included into the Eligible Notaries List now have the right to proceed with the above transactions (acts) with valuable property and make respective registrations in the Registers. As of 6 May 2022, 475 such notaries have already been included in the List.

At the same time, it should be noted that the Resolution provides for the possibility of inclusion the notaries into the Eligible Notaries List with certain restrictions (reservations) of two types:

• prohibition to certify agreements on alienation of corporate rights that at the same time means restriction of access to the Corporate Register for registration of legal entities and private entrepreneurs; and/or
• prohibition to certify agreements on alienation of real estate, objects under construction and/or proprietary rights to real estate that at the same time means restriction of access to the Real Estate Register for registration of proprietary rights to real estate.

Therefore, it is advisable to carefully check the status of a particular notary and the presence or absence of relevant restrictions (reservations) imposed.

Updated “exterritorial approach”

Since the beginning of the Russian military aggression against Ukraine, state registration has been carried out based on the so-called “exterritorial approach” regardless of the location of the legal entities, private entrepreneurs and real estate property.

According to the Resolution, the extraterritorial approach now applies for registrations carried out by officials of the Ministry of Justice, and for registrations of legal entities and a private entrepreneurs – only when state registration relates to legal entities and private entrepreneurs located within the administrative-territorial unit, where access to the Registers is suspended (the “Restricted Territories List”) as approved by Order of the Ministry of Justice of Ukraine dated 1 April 2022 No. 1307/5 (as amended). The Restricted Territories List includes the territories where full-scale military actions connected with Russian military aggression against Ukraine continue. In particular, currently it includes Donetsk, Luhansk, Kherson regions entirely, certain districts of Zaporizhia, Mykolaiv and Kharkiv regions, as well as the Autonomous Republic of Crimea and the City of Sevastopol.

Opportunities and restrictions

Through the amendments introduced by the Resolution in fact the government allowed the notaries included in the Eligible Notaries List to perform almost all notarial actions and respective registrations unless there are certain restrictions in place. Nevertheless, the interconnection of respective rules remains complicated and each particular transaction shall be carefully analysed as to its technical possibility in the current legal framework. Therefore, for the ease of orientation in the reopened opportunities we outline below a brief guide to the currently allowed transactions and corresponding restrictions.

Corporate

Opportunities

• amending information on participants of a legal entity. e. g., in course of direct selling or purchasing certain business or as a part of more complicated corporate transactions and/or restructuring;
• increase or decrease of charter capital, e. g. in course of attracting additional financing or withdrawal of investment by the existing participants or restructuring debt by way of debt-to-equity swap;
• amending constituent documents, e. g. to implement new corporate governance model, impose restrictions on management’s actions to avoid ultra vires transactions entered into in bad faith, to adopt a flexible dividend policy.

Restrictions

• notarial certification of powers of attorney issued by the natural persons to manage and dispose securities, corporate rights and bank accounts are prohibited;
• contribution of real estate into the charter capital of a legal entity is prohibited;
• notarial acts with participation of persons associated with the Russian Federation (its citizens and legal entities that meet the established criteria) are prohibited with a few specific exemptions;
• reviewing independently information and forming information certificates from the Corporate Register is not possible.

Real estate

Opportunities

• sale and purchase of real estate, including both residential and commercial property, e. g. apartments, offices, commercial premises;
• mortgage of real estate;
• long-term lease of real estate, i. e., for three years and more;
• division and consolidation of real estate.

Restrictions

• land transactions are currently not possible due to the need of access to the State Land Cadastre which currently remains restricted; it means that transactions with standalone buildings might be problematic as well;
• sale of real estate by a natural person under the power of attorney is expressly prohibited; however, it is possible to buy real estate under the power of attorney; moreover, block relates only to natural person-owners;
• sale of real estate owned by a person for less than one calendar month is prohibited (except for real estate inherited or divided between owners or spouses);
• writs of execution on credit agreements that are not notarised are prohibited;
• alienation of real estate at the location of the parties is prohibited; an exception is made for the city of Kyiv and Kyiv region where alienation is possible based on either of the parties’ registered address;
• alienation of real estate in areas included in the Restricted Territories List is prohibited;
• notarial acts with participation of persons associated with the Russian Federation (its citizens and legal entities that meet the established criteria) are prohibited with a few specific exemptions;
• reviewing independently information and forming information certificates from the Real Estate Register.

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This move by the Government is a part of a greater plan to gradually relaunch full operability of the Registers. We emphasise that although relaunch of the Registers is rather a technical issue, it was entirely necessary for reviving business activity in Ukraine as well as for resolving the issues faced by the business during the first months of the war. Hopefully, this will also contribute to returning of business activity to the pre-war indicators and to generating new transactions in new realities.