The main and only source of real estate law in Ukraine is the statute.
In 2022, due to the full-scale invasion of Ukraine by Russia, the real estate market suffered significant losses. The business was forced to abandon the implementation of new projects, given the constant threat of rocket attacks.
According to public information, notaries certified 224 thousand real estate contracts in nine months of 2022, which is 2.7 times fewer than in the same period of 2021.
However, many Ukrainian developers, despite the difficult situation, continued their activities. The majority of transactions were in the IT, agriculture, food and drink (due to the privatisation of alcohol factories), mining, financial and logistics sectors.
The privatisation and lease of state-owned properties showed successful results despite the situation in the country – 193 privatisation and 1,193 lease auctions were held.
Ukrainian authorities actively worked with international financial organisations and foreign governments throughout the year in order to contribute to post-war reconstruction.
COVID-19 had no more real impact on the real estate market. Rising inflation and increases in interest rates resulted from the escalation of the Russian invasion of Ukraine.
Technologies such as blockchain, decentralised finance, proptech and other disruptive technologies are in the initial stage of development in Ukraine. There may be some smaller tech start-ups working on the implementation of disruptive technologies in real estate, but they are not widely known.
However, there is blockchain usage in real estate in Ukraine in the form of SETAM, a blockchain-based online auction for property trading where all bids are entered into a blockchain. However, the sustainability of the system is questionable.
Generally, it is not considered likely that disruptive technologies will have an important role in the Ukrainian real estate market.
There is an ongoing reform of the construction sector that started in 2021, including replacing the licensing system with the certification of individuals performing construction works (ie, construction supervisors) to enable personal responsibility for construction. A new construction authority, the State Inspection for Architecture and Urban Planning of Ukraine, instead of the State Architectural and Construction Inspection, has been established. The introduction of the new body was aimed at restarting state–business relations in the construction sphere by adopting more transparent procedures and introducing an electronic construction system aimed at significantly reducing the level of corruption.
The past two years has also seen an even greater introduction of digitalisation in the construction industry and a reduction in paperwork. In particular, almost all services in construction (the issuance of town planning conditions, permits on construction, commissioning, etc) are provided through the Unified State Electronic System for the Construction Sector launched in 2021. This system allows for automation of processes and the elimination of human influence on decision-making processes in the industry.
Moreover, a new law introducing the urban planning reform was adopted (the law is pending signature by the President of Ukraine as of April 2023). The new law provides for the digitisation of administrative and other services in the field of urban planning, and the introduction of private urban planning control, among other things. However, there are many discussions regarding the changes proposed by this law.
Urban Planning and Land Decentralisation Reform
Another important reform that was implemented in 2021 provides for:
Simplification of the Construction of Transport Infrastructure Facilities
Due to the full-scale invasion of Ukraine by Russia and the need for business relocation in 2022, a reform that provides for the simplification of the construction of transport infrastructure facilities was introduced. As a result, a number of facilities were built, in particular, river ports (terminals) on the Danube River, roads, multimodal terminals and complexes near the borders with EU.
Freehold and leasehold are the main titles. There are, however, some "exotic” title forms, inherited from Soviet times, which sometimes emerge in transactions.
The main laws applicable to the transfer of title of real estate are:
Special treatment of investment transactions involving residential properties is governed by the Law of Ukraine "On Investment Activity" and the Law of Ukraine "On Financial and Credit Mechanisms and Property Management During Residential Construction and Real Estate Transactions".
Transfers are most commonly effected by entering into sale and purchase agreements or other bilateral documents (eg, acts of transfer and acceptance for contribution to share capital). The agreements providing for transfer of title to real estate are subject to notarisation. The notary also validates the agreement's provision for compliance with the law. The property rights are subject to registration with the Property Register, which can also be performed by a notary. Title insurance as a product is not very popular on the Ukrainian market.
Despite the difficulties with notarisation caused by COVID-19 and the Russian invasion of Ukraine, the procedure has not changed. However, only certain notaries are authorised to perform registration actions in the real estate sector.
Due diligence (DD) usually includes the verification of various public registers (including litigation and insolvency registers, and title register), review of the title validity, encumbrances, title transfer history, effective urban planning documents, disputes and leases. The corporate status of a property holding a special-purpose vehicle – as well as its permits, contracts, etc – is also reviewed.
The full-scale invasion of Ukraine by Russia had a significant impact on the DD process given the limited access to public registers. Accordingly, for the purpose of proper verification, it is necessary to contact authorised persons who have access to such registers.
Warranties were only introduced into Ukrainian law in July 2021 and no case law has occurred since then; this is the reason why the majority of commercial property deals are structured as share deals outside Ukraine to allow the application of foreign law.
Typical representations and warranties in commercial real estate transactions are clear title, absence of third-party rights and encumbrances, absence of disputes and necessity for capital repair. Others may depend on the industry or position of the parties. For instance, a purchaser with a strong negotiation position usually requires warranties and/or indemnities on the title history. There are no specific COVID-19-related warranties/representations.
Ukrainian law provides for very basic protection of the buyer against the seller՚s misrepresentation. There is a rule that an agreement concluded as a result of a lie (ie, the agreement would not have been concluded if not for the lie) may be invalidated in court. However, buyers rarely rely on this rule, as in Ukraine it may be quite complicated to prove the above circumstances. This is one of the main reasons why English law is chosen as the governing law in the majority of large real estate transactions.
Ukrainian insurance practice does not offer representation and warranty insurance.
Civil law, land law, banking and tax are the most important areas of law for an investor to consider when purchasing real estate in Ukraine. Transactions involving major major real estate assets and yielding properties may be subject to merger control approval. FDI screening is not available in Ukraine. However, the Ukrainian Antimonopoly Committee is vested with the powers to block transactions involving parties included in the Ukrainian sanctions list.
Ukrainian law does not impose responsibility on a buyer if the buyer did not commit any violations in relation to soil pollution or environmental contamination. However, the controlling authorities usually record the fact that the soil is polluted (or other such violation has been committed) and issue a fine to the owner of the relevant property. It is then the buyer՚s responsibility to challenge the fine in court or by administrative procedure.
However, it can be difficult to prove that the violation was committed by the seller, as the burden of proof is on the buyer. To this end, a comprehensive review of the purchased property is recommended, including conducting technical or ecological DD if necessary, and making a record of its condition in the agreement or transfer act.
In order to ascertain the applicable zoning regulations, the buyer may request the relevant information from the seller and the authorities. The zoning regulations are most commonly contained in the master plan of the city/village, the zoning plan and/or the detailed plan of the territory. There is no option to enter into a development agreement with public authorities to facilitate a private project.
There are several grounds for the government to take land or real estate, as set out below.
An asset deal is subject to 20% VAT. The sale of an undeveloped plot of land is VAT exempt. In the case that the buyer is an individual, the pension duty of 1% of the property value applies. Stamp duty is 1%.
For land and real estate, notarisation costs will apply, in particular, to certify the contract. There is also an administrative fee for registration of title to the purchased asset. In certain cases, it is necessary to pay a military levy at the rate of 1.5%.
A share deal (acquisition of shares of a property holding company) is VAT exempt, and no further transaction taxes and notary fees apply. However, withholding tax may be payable by the seller (see 8.4 Income Tax Withholding for Foreign Investors for more detail).
The distribution of transaction costs between parties may vary. However, it is common for each party to pay its own taxes and duties, with notary fees to be paid by both parties equally, and the registration fee is most commonly paid by the buyer.
There are no restrictions for foreign investors to acquire bricks-and-mortar real estate (buildings, etc), but some restrictions apply with regard to land acquisition, which is legally seen and treated as a separate asset in the majority of cases.
Foreign investors are banned from acquiring agricultural land in Ukraine, either directly or indirectly. The acquisition of non-agricultural land is subject to some restrictions, in particular:
However, in practice, there are some legal structures that enable foreign investors to purchase non-agricultural land in some instances.
There are no special regulations for the acquisition of commercial real estate; the usual means of financing, ie, equity and debt, are used. Funds legislation is not very advanced in Ukraine.
The most common type of security for the acquisition of existing real estate is a mortgage. Depending on the property՚s valuation, the bank may also require additional security. In this case, there are various options, including pledge of shares, pledge of funds on deposit, mortgage of additional real estate (including a second tier in some cases), an ultimate beneficial owner (UBO) personal guarantee, and (third party’s) surety.
For the financing of development, the above options are also applicable; however, there are certain peculiarities. In large transactions, the lender will likely be required to provide evidence of the construction in progress – as well as other collateral property in the mortgage, and shares of the developer in the pledge – and to conclude direct agreements with the designer, the general contractor, etc, in order to be able to intervene in the transaction instead of the developer in the case of enforcement. In this regard, it is important whether the land underlying the construction is leased or owned. The owned land plot will also be considered for the mortgage, while the pledge of lease right has certain restrictions and limitations.
Foreign lenders are not entitled to foreclose on agricultural land. That said, agricultural land is not considered as a security for international lenders. Domestic lenders can use agricultural land as a security, subject to some restrictions.
Generally, tere are no restrictions on the repayment of loans in favour of foreign lenders, but the loan agreement and all addenda thereto are subject to registration with the National Bank of Ukraine.
Due to the martial law some restrictions on the repayment of loans in foreign currency apply.
Notary fees for the notarisation of mortgages and stamp duties for the registration of mortgages and pledges apply.
There are no taxes (including VAT) or fees for granting a security.
Enforcement of security is treated as acquisition, therefore taxes, duties and fees apply the same way as described in 2.10 Taxes Applicable to a Transaction. In certain cases, the adjusting of tax differences may be applicable.
There are no special requirements. However, general requirements, such as the obtainment of corporate approvals, shall apply.
The formalities may depend on the enforcement option provided in the mortgage agreement. However, the common and most important rule is to comply with the procedure of serving the borrower with the default notice. This notice will be served at least 30 days prior to enforcement, and this term is also a mandatory cure period, during which the borrower may perform the breached obligation. If the obligation is performed within the cure period, the lender may not enforce the mortgage.
The priority of the lender՚s security interest is procured by registering the mortgage upon its conclusion. The mortgage registered earlier has priority over the mortgage registered later.
There were no restrictions on foreclosure implemented in response to the COVID-19 pandemic.
If the debt is secured, it will be considered senior to unsecured debt by operation of law, regardless of any agreements.
However, if the new debt is also secured, the lenders may agree to make the existing debt subordinate to the new one. To effectuate this, the existing lender will have to deregister the mortgage, allow the new lender to register its mortgage, and then re-register its mortgage as a second-tier security.
Ukrainian law does not impose any liability on lenders under environmental laws.
A borrower՚s security interests do not become void in the event of its insolvency. However, a debt restructuring plan, which is approved by the court, may provide for the release of certain debts. Once the debt is released, all security instruments shall automatically terminate.
Furthermore, any agreements that the borrower entered into within three years prior to the commencement of the insolvency proceedings may be clawed back, ie, invalidated by a court at the request of the receiver or a lender if they damaged the borrower՚s solvency (eg, the borrower prematurely performed its obligations or undertook excessive liability that led to insolvency).
In Ukraine, very few loans use the London Inter-Bank Offered Rate (LIBOR) index. Based on the authors՚ experience, the majority of parties have been able to reach a mutually satisfactory agreement on the replacement of the LIBOR.
The government and municipalities develop and approve various urban planning documents that regulate the zoning of territories. Businesses must comply with the regulations when allocating land and developing any real estate.
There are state standards approved by the Ministry for Communities, Territories and Infrastructure Development of Ukraine. These standards regulate requirements as to the design and method of construction of real estate. Certain parts of the appearance of real estate, such as facades, may be regulated by municipalities, eg, the appearance of advertisements and naming signs.
The development and designated use of a real estate object is performed by the designer at the developer՚s request. It should comply with the urban planning documents and designated use of the underlying plot of land. There may also be other restrictions, such as protection zones, sanitary protection zones and cultural heritage areas. Some of the restrictions may prohibit the construction of residential real estate, others may prohibit any construction whatsoever.
Depending on the project, there may be several stages of development. The developer may need to prepare a detailed plan of the territory and get it approved, conduct an environmental impact assessment, design the project, undergo expert valuation of the design, and obtain a construction permit.
Therefore, there may or may not be stages where third parties might be involved and may raise an objection. The greatest likelihood for third parties objecting is at the stages of developing the detailed plan of the territory and conducting an environmental impact assessment, as these procedures imply public hearings. However, there are also cases when the public objects at later stages of construction.
There is a right to appeal to a higher administrative body and to challenge the decision in court.
There is no requirement to enter into facilitation agreements. However, the developer will likely need to conclude agreements with utilities suppliers to connect the property to the relevant networks.
Firstly, when leasing or purchasing public land, relevant authorities will ensure compliance with urban planning documents and refuse to allocate the land if the intent of construction contradicts the aforementioned documents. Secondly, the controlling authority may refuse to issue the construction permit. Lastly, depending on the restriction, there may be a certain controlling authority that can inspect the facility. For instance, there is an authority that inspects land, which may establish a violation of the designated use.
The most common and viable investment vehicles are the limited liability company (LLC) and the joint stock company (JSC).
However, there are, of course, various entities that may be used by investors. Besides those already mentioned, there are additional liability companies, full liability companies and commandite companies (types of entities close to full and limited partnerships), private enterprises, co-operates, etc.
An LLC is a company in which the investor՚s liability is limited to its contribution to the company՚s share capital. It is a straightforward type of entity, which is easy to establish and operate. The membership in an LLC is registered in the Companies Registry.
A JSC is a company limited by shares of a certain nominal. This is a more advanced type of entity, which is more suited to larger structures with elaborate corporate governance. There are different types of shares that the JSC may issue. The shares of a JSC are securities and are stored by a depository institution. The procedures of conveying the general shareholders՚ meeting, formulation of agenda, etc, are more complicated in a JSC. JSCs may conduct a public offering of shares.
The minimum capital required to establish an LLC is UAH0.01, and UAH1,340,000 for a JSC.
The main governing body of an LLC and a JSC is the general shareholders՚ meeting.
An LLC may be managed by a single director or a board, and may have a supervisory board, depending on the investor՚s choice. There may be limitations of the director's powers provided by the LLC՚s charter.
The management structure of a JSC is determined by its charter. Under the one-level structure of a JSC, it is managed by a single director (if the number of shareholders is up to ten people) or a board of directors. Under the two-level structure of a JSC, besides having a single director or board of directors, it is required to have a supervisory board. There are also corporate governance requirements for public JSCs, including the requirement to appoint independent directors to the supervisory board.
For an LLC, the annual entity maintenance and accounting compliance costs may vary greatly, depending on the volume of operations of the company. For instance, if there is a relatively small number of transactions per month (ie, up to 50 or 100 transactions), and a small number of employees, accounting can be outsourced for a reasonable fee. If the company is more active, hiring an accountant, or several, may be necessary.
As JSCs have more complicated accounting and reporting practices, the relevant costs are significantly higher for this type of entity.
The main types of agreements on the use of real estate are leasehold and easement.
There is no special treatment of commercial leases; the lease is generally regulated by the Civil Code of Ukraine, while the lease of public assets (state and communal properties) is regulated by a separate, dedicated law.
As stated at 6.2 Types of Commercial Leases, the lease is regulated by the general provisions of the Civil Code of Ukraine and there is a significant amount of discretion in practice.
There is currently no material on-going regulation of rents or lease terms that resulted from the coronavirus pandemic.
Due to the introduction of martial law and the need for business relocation, the Ukrainian government has established special conditions and discounts for the lease of public assets (state and communal properties).
There is a high level of discretion regarding the length of a lease. The length of a lease is not regulated and largely depends on the business cycle of the tenant. The usual length of an office lease is five years; for retail, it is five to ten years; and for residential, one to three years. For major retail, anchor tenants usually insist on 20 to 25 years. Also, the lessee commonly wants to have the prolongation option.
The day-to-day maintenance of the leased property is usually performed by the lessee, while a capital repair is usually conducted by the lessor. However, the initial adaptation may include capital repair as well, if the premises are accepted in a shell – and core – condition. This is relevant for hypermarkets, cinemas and other lessees that have special requirements with regard to the premises and designated construction teams.
For lease contracts of public assets (state and communal properties), restrictions on the terms and other conditions of the lease are set. Lease contracts of such assets are generally concluded based on the results of auctions, except for some cases.
The lease payments (the rent + OPEX + utilities + marketing payments) are paid in local currency (UAH), while the actual rates of the principal/base rent and OPEX are nominated in foreign currency. Payments are made according to the actual FX rate. Domestic FX payments are prohibited.
Rent is usually subject to indexation for inflation.
For a lease of premises in a newly developed shopping centre, the lessee would normally expect a discounted rent until the moment the shopping centre is fully occupied.
The parties may further agree on the staged increase of the rent within the term of the lease.
The amount of rent for public assets (state and communal properties) is determined based on the results of the auction.
During the COVID–19 pandemic and the introduction of martial law, the actual commercial terms of the leases were often waived and the parties agreed ad-hoc on suitable commercial terms based on the actual economical situation.
There is usually a formula predetermining how the rent is changed; eg, a 5% increase per year, plus the rate of inflation, plus the currency exchange rate.
VAT (20%) applies to rent payments.
Costs at the start of a lease usually include an advance payment in the amount of one to three months rent, which may also serve as a security deposit. This advance payment usually consists of all payments under the agreement, except for the utilities and the turnover rent; ie, the base rent, OPEX, marketing fee.
Common area maintenance and repair costs are usually covered by the category of operating expenses, which is charged on top of the principal rent.
Usually, the utilities consumed on the premises are paid by the relevant utilities՚ metering devices, while the utilities consumed in common areas are paid by all tenants, pro rata to the rented area.
The costs of insuring the real estate that is the subject of a lease and of events causing damage will depend on the negotiations of the parties. There have been cases where the lessors demand that the lessee insure the leased premises, and vice versa. Most commonly, there are no requirements with regard to insured events in lease agreements.
The insurance culture is underdeveloped in Ukraine, therefore the majority of businesses in Ukraine do not have business interruption insurance.
It is quite common for the lessor to stipulate the designated use of the real estate in the agreement. There are also certain legal restrictions for different types of real estate. For instance, there are strict restrictions for residential real estate. However, as regards commercial property, the law does not provide for many requirements, except for the general requirements on fire safety, sanitation, etc.
The most common approach is that the lessee is allowed to improve the real estate, subject to the lessor՚s written consent and pre-approval of design documents. Also, the lessees are often not compensated for inseparable improvements of the real estate unless there is a specific arrangement between the parties.
The leases of all types of privately owned real estate assets are treated equally.
There is a special treatment of the lease of public assets, which is solidly regulated.
There is a special statute regulating land leases, according to which the land is considered and treated as a special real estate asset in comparison to bricks-and-mortar properties.
Coronavirus legislation did not establish any distinction between leases of different asset classes.
Insolvency proceedings against the tenant can trigger termination of the lease by the lessor.
The most common form(s) of security is/are an advance payment (ie, a security deposit) in the amount of one or two months՚ rent, and/or a bank guarantee.
The law provides that if the lessee continues using the real estate for a month after the termination of the lease without the lessor՚s objections, the lease is renewed for another term on the same conditions.
To avoid this, the lessors usually explicitly prohibit this in the lease agreements. Also, the law provides for a penalty in the amount of double daily rent for each day of delay in returning the real estate.
Ukrainian law only allows assignment subject to the other party՚s written consent. The lease agreements usually use the same provision or prohibit any assignment whatsoever. On a related note, the lease agreements may allow sub-leasing, but also subject to the lessor՚s explicit consent.
Having said this, the lenders usually insist on rent assignment covenants as a collateral and commercial terms of the leases are often subject to approval by the lenders.
This largely depends on the parties՚ negotiations. It is common for a strong lessee to seek a unilateral termination right without having to justify the decision.
The law provides that the lessor may terminate the lease if the lessee:
The lessor may also sue the lessee for termination in the case that the lessee systematically violates the payment obligations.
The lessee may terminate the agreement if the property does not correspond to the requirements set out in the agreement or if the lessor does not perform its obligation on capital repair of the property.
A lease relating to a building, capital structure or a part thereof exceeding three years is subject to mandatory notarisation and to registration with the property register for its validity. The lease and other property rights are registered in the State Register of Property Rights to Immovable Property and their Encumbrances. The land lease is also registered in the State Land Cadastre.
The fees include a notarisation fee and a registration fee. It is common for the lessee to pay the fees, but the notarisation fee can also be paid by the parties in equal parts or by the lessor. However, this is rather rare.
The lessee may be evicted after termination of the agreement (either by the lessor unilaterally or by expiry of the term of the lease).
If done outside of court, this is subject to the agreement՚s regulation. A common procedure established in the agreement is that the lessor collects the lessee՚s property from inside the leased real estate and stores it at the lessee՚s cost; if the lessee does not collect its property within the term stipulated by the agreement (usually around ten business days), the lessor may dispose of the property at its discretion.
However, there are cases where the lessee resists an out-of-court eviction. In this case, the lessor may file a suit on eviction. If the dispute is won, the lessor may evict the lessee, with the involvement of an enforcement officer and the national police.
Ukrainian law does not allow a third party to terminate an agreement.
However, the agreement may be challenged by a third party if its interests were violated at some stage. For instance, if mandatory corporate approvals or spousal consents were not obtained.
The law also provides that an agreement may be invalidated if it contradicts the interests of the state and society, or the moral principles of society. However, this is an exceptional measure and the authors are not aware of the respective case law.
In the majority of cases, the price for construction works will be fixed, but the price for materials may be flexible.
The designer and the contractor may be different companies or the same one; this varies from case to case. The major international companies often also involve an independent supervisory entity.
In addition, the developer must appoint a person responsible for technical supervision (for the construction to comply with the applicable regulations), who must not be the same person as the contractor.
From an organisational point of view, there is technical supervision and author՚s supervision, expert valuation of design documents, certification of construction materials and the developer՚s control over the process.
The suppliers of materials and the contractor shall give warranties on the quality of the goods and works, and undertake to compensate any damages. A warranty of quality of works is also established by law for ten years after the commissioning of the facility. There may be a cap for damages compensation of 100% of the contract price, which, however, should not cover the gravest defects/violations.
Indemnifications, waivers and elaborated limitations of liability are not common in Ukrainian practice.
There are penalties and fines in the majority of agreements, for both delays in the delivery of milestones and construction completion dates.
There may be a retention of a portion of the contract price – eg, 5% – which is payable within one or several years if no defects are discovered. Alternatively, a bank guarantee or a holding-company guarantee may be acceptable if the contractor is a reputable party. Escrow accounts and third-party sureties are not quite as common.
The contractor is permitted to lien the property in the event of non-payment. However, it is not often done in practice. After the payment is made, the contractor shall submit an application to deregister the lien, which is registered as an encumbrance under Ukrainian law, within five days from the date of the developer՚s request. If the contractor does not deregister the lien, it is liable for all damages resulting from it, and the developer may sue the contractor on the termination of the lien, after which the developer may itself deregister the lien.
There are no requirements to inhabit or use the constructed object, except for the general requirement to commission it.
According to the general rule, an asset deal is subject to a standard VAT rate of 20%.
However, an asset deal with an undeveloped land plot is VAT exempt, and a transaction involving a residential building (premises) may also be VAT exempt (depending on the reflection of the building and a land plot in the accounting system).
The amount of VAT is usually included in the purchase price and is paid by the buyer.
Share deals are also exempt from VAT.
A share deal (the acquisition of shares of a property holding company) may be considered in this regard, as the sale and purchase of the shares is not subject to VAT. There are also no strict requirements regarding expert valuation of the real estate property before making such a transaction, thus the contractual price depends only on parties՚ agreements and could be lower than the market price. That makes such transactions more attractive from the taxation perspective, even if it involves a higher volume of transactional work (legal and financial DD, merger control, sales and purchase agreement structure, etc).
At the same time, it should be borne in mind that profits derived from sales (alienation) of shares in Ukrainian property-rich companies may be subject to withholding tax in the territory of Ukraine. See 8.4 Income Tax Withholding for Foreign Investors for details.
All owners of business premises are payers of real estate tax except for certain exemptions (for state-owned premises, dormitories, orphanages, etc). This is a local tax applied on residential and non-residential premises (buildings, apartments, etc) and is calculated based on their area.
The rate is determined by local councils and cannot exceed 1.5% of the minimum wage established as of 1 January of the tax year per square metre.
The maximum rate of real estate tax for 2022 is equal to EUR2.49 per square metre. Based on the decisions of the local councils, certain privileges/exemptions may be applicable for specific locations.
Land payment is a separate tax, paid in the form of a land lease (by tenants of leased public land plots) or as a land tax (paid by owners of land).
Generally, foreign private individuals are subject to personal income tax (including income from a lease, and the sale of real estate) at a rate of 18% and a military levy at the rate of 1.5%. Receipt of the rental income for foreign private individuals is only possible through an agent (a legal entity or a private entrepreneur) located in the territory of Ukraine. The agent shall be involved in terms of an agency agreement to conduct rental activity on behalf of the foreign individual. Personal income tax and a military levy shall be withheld from the rental income and paid to the state budget by the agent. Failure to have an agent for a foreign individual could be considered tax evasion and is subject to prosecution.
Legal entities are subject to withholding tax on the Ukraine-sourced income, which is levied at a rate of 15%, unless a relevant double tax treaty, to which Ukraine is a party, rules otherwise. This tax rate also applies to income from transactions (lease, sale and purchase) with real estate located in Ukraine. The amount of withholding tax is deducted by the buyer from the purchase price before payment to a non-resident.
Capital gains derived from the sale or other disposal of shares or corporate rights in a Ukrainian legal entity (as well as in a foreign legal entity that owns corporate rights of the legal entity in Ukraine), the value of which is 50% or more formed by real estate located in Ukraine, shall be taxed in Ukraine with withholding tax at the rate of 15% unless a relevant double tax treaty rules otherwise. This rule also applies in the event that the sale or disposal transaction is carried out between two non-residents abroad.
If the seller is a non-resident with a representative office (RO) in Ukraine, the tax is paid by that RO. If there is no RO, the tax shall be paid by the purchaser (including a non-resident purchaser).
With the exception of land, the cost of fixed assets used in business activities is capitalised and depreciated for corporate income tax purposes. Each fixed asset is accounted for separately and is depreciated on a monthly basis.
Legal entities can determine the period of useful economic life of fixed assets in their internal accounting policies, provided that this period is not less than the minimum period prescribed by the Tax Code of Ukraine.
Land and shares are not depreciable.
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Challenges for the Real Estate and Construction Market in 2022: Full-Scale Russian Invasion
The real estate market has suffered significant losses due to Russia՚s full-scale invasion of Ukraine. Apart from a general drop in demand for all types of real estate, market operators have faced other challenges, such as the safety of visitors and staff, and working in blackouts.
In addition, many assets have been damaged or destroyed, and significant investments are needed to restore them. Thus, according to the Kyiv School of Economics (KSE Institute), direct documented damage to residential and non-residential real estate, as well as other infrastructure in the year since the start of the full-scale Russian military invasion, has totalled more than USD143.8 billion (at replacement cost). Residential buildings (37.3% or USD53.6 billion) and infrastructure (25.2% or USD36.2 billion) account for the largest share of total direct damage. Losses of business assets amount to at least USD11.3 billion and continue to grow.
Therefore, business and government representatives are faced with finding solutions that would help to stabilise the economy quickly during the invasion and ensure effective development in the post-war reconstruction period.
Recovery plan for Ukraine
In July 2022, in the Swiss city of Lugano, government representatives presented the Recovery Plan for Ukraine (the "Plan"). The Plan is currently estimated at USD750 billion, and the main source of Ukraine՚s reconstruction should be the confiscated assets of the Russian Federation.
According to the Prime Minister of Ukraine, other sources for recovery will include grants and concessional loans from international financial organisations and partner countries as well as private investment, extra-budgetary contributions from individuals and corporations, and funds from the state budget of Ukraine.
The Plan includes a number of projects, including anti-corruption, digitalisation of the state, security and defence, environmental protection, energy independence, improvement of the business environment, housing and infrastructure restoration, education, healthcare, culture and sport. In particular, the real estate sector includes projects such as the construction of a cargo terminal at Boryspil International Airport, the construction of intermodal logistics hubs and industrial parks.
Results of construction digitalisation
In 2019, the Ministry of Digital Transformation of Ukraine, jointly with the Ministry of Communities and Territories Development of Ukraine and MPs, launched a global reform in the construction sector.
According to the Minister of Digital Transformation of Ukraine, the old register which used non-transparent processes has been replaced by the Unified State Electronic System in the Construction Sector, created with the support of the USAID/UK Aid "Transparency and Accountability in Public Administration and Services (TAPAS)" project. At the same time, construction services have been made available to ordinary people on the Diia portal, a Ukrainian electronic public service, via the Unified State Electronic System for the Construction Sector. At its inception, it was more of a convenient form for document filing but has increasingly automated construction services to eliminate the human factor in decision-making. Stringent data verification mechanisms, including interaction with other registers, significantly increase the transparency of processes.
To date, the Unified State Electronic System in the Construction Sector stores more than 1.9 million documents. Since 2020, the portal has been visited by 1.3 million users who have received over 172,000 services, including from the Diia portal and administrative service centres. The portal also offers 15 electronic services in the construction sector. This represents 70% of all services in the sector.
As a result of the Russian invasion, the residential property market in Ukraine has virtually come to a standstill. New developments are on hold, with only projects started before the war being completed.
Another concern is the repair and restoration of housing that has been damaged and destroyed. The government is introducing various programmes and legislative changes to help people with this. There are no significant mitigations or incentives for developers.
One of the new areas of activity is the construction of temporary housing for displaced persons, especially in the western regions of the country. Procedures for such construction have been simplified.
According to statistics, as of 24 February and as of the end of December 2022, 245 new buildings and 465 sections were commissioned in Ukraine, including 29 new buildings and 81 sections in the capital. Currently, 26.5% of the total number of new buildings in the country are finished. As of the end of December, about 72% of new buildings had operating sales departments.
The war has triggered significant inflation and a depreciation of the national currency: according to the National Bank of Ukraine, consumer inflation was 22.6% for the year, and the hryvnia depreciated by almost 45% (from UAH28 to UAH40 for 1USD).
These factors affected the cost of construction, as prices for construction materials increased significantly. The cost per square metre in future apartments has also increased accordingly (in Kyiv, the price per square metre has increased by 38%). However, in most cases, it is not the price increase per se, but the adjustment of the cost of future square metres to reflect inflation. However, prices in the western regions have also risen due to increased demand, as they are considered safer and more attractive for investment. According to publicly available data, the price per square metre of newly built property in Lviv increased by 80%, in Ivano-Frankivsk by 65%, in Uzhhorod by 83%, and in Zakarpattia region by 116% over the year.
During the full-scale Russian invasion, the number of business leases in Ukraine dropped significantly. The few exceptions were the western regions that hosted refugees and displaced businesses from the east, ie, Lviv, Lutsk, Ivano-Frankivsk, Uzhhorod, and Ternopil. As for the leasing of office and retail space in Kyiv from 24 February to mid-April 2022, the market was virtually non-existent, with the first offers in the segment appearing only from 15-17 April.
Landlords faced the challenge of reviewing their lease agreements, understanding which tenants were planning to stay, and negotiating prices or terminating agreements with tenants who had wound up their businesses. According to the property management company CBRE Ukraine, the annual lease activity as of December 2022 totalled 40,000 sq m, ie, only 22% of the volume of 2021 (approximately 185,000 sq m). The most notable transaction was the relocation of an international intergovernmental organisation (about 3,000 sq m) to Eurasia BC in Q3 2022. During the third quarter, the office property market showed some positive signs of recovery. However, following the ongoing attacks on the country՚s power grid that began in October 2022, the market returned to a waiting attitude.
Research shows that in 2022, tenants responded to the war in two main ways. Large international companies mostly kept their offices, adopting a wait-and-see approach and paying full or partial rent. Smaller international and local companies downsized their office space, where possible, or moved to smaller and more affordable locations, mostly on short-term leases. However, with relocations accounting for only 34% of total lease activity, relocations to new buildings were quite limited, as additional relocation costs, especially for non-refurbished space, hampered such decisions.
According to the State Property Fund of Ukraine, in 2022 the winners of privatisation auctions transferred UAH1.7 billion to the state budget. A total of 193 successful auctions were held.
Last year, businesses showed the greatest interest in the Odesa Sparkling Wines Factory. At the auction on 1 February, it sold for UAH195 million, which is 2.2 times more than the starting price. The investment topped the list of sales in the large business segment.
However, the real demand for privatisation property began in the autumn, after the State Property Fund of Ukraine resumed privatisation auctions: between September and December, four state-owned enterprises were sold, with the State Property Fund of Ukraine receiving over UAH100 million for each purchase.
Businessmen showed the greatest interest in distilleries. In particular, they invested UAH150 million in the purchase of Marilivskyi, UAH130.4 million in Vuzlivskyi and UAH120 million in Zalozetskyi distillery.
The State Property Fund of Ukraine notes that these and other distilleries are of interest to entrepreneurs not only as investments in the production of food or industrial alcohol but they can be also used to produce motor fuel (bioethanol), pharmaceuticals and chemicals. Such assets may also be of interest to agricultural companies for processing their products. Other parts of the distilleries can be seen as brownfields with ready-made communications and roads for the development of any other business.
In October 2022, Ukraine launched the government՚s eOselya affordable lending programme. The programme is available only to the military, law enforcement, healthcare and education personnel, who can receive a preferential housing loan at a 3% interest rate for up to 20 years.
In early 2023, the programme was supposed to expand the categories of citizens who could get a housing loan at 7%, but because of martial law and a lack of funding, the launch of mass mortgages did not take place. According to project managers, it can be expected to be rolled out in 2023.
Insurance of investments against war risks
The Ukrainian government considers the introduction of an insurance mechanism to be one of the basic conditions for attracting foreign investment during the post-war recovery of Ukraine՚s economy. In particular, the Ministry of Economy of Ukraine has agreed with the Multilateral Investment Guarantee Agency (MIGA), a member of the World Bank Group, to launch a wartime investment insurance mechanism. MIGA is ready to offer a pilot project worth USD30 million for Ukraine. The pilot project is intended to develop a strategy to provide guarantees for foreign investors willing to invest in Ukraine. The name of the project and the terms of the guarantee have not been not disclosed.
Protecting future real estate assets
A law was adopted to protect the rights of investors regarding construction, including residential construction, as outlined below.
A law introducing urban planning reform was adopted (pending signature by the President of Ukraine as of April 2023) and provides for:
Simplifying the construction of transport infrastructure facilities
A number of legislative amendments have been developed to simplify the procedure for the construction and registration of land rights for the construction of transport infrastructure facilities, in particular:
In 2022, the legislation on state and municipal property privatisation was comprehensively amended to speed up the sale of real estate and attract investors. In particular:
A draft scheme was developed to improve the mechanism for attracting private investment through public-private partnerships (PPPs). The PPP mechanism is planned to be used as a way to restore Ukraine as well as the damaged and destroyed social, transport and other infrastructure. Key changes include:
In addition, the Law "On Amendments to the Budget Code of Ukraine" came into force at the end of August 2022. The Law provides for the introduction of long-term obligations under a PPP agreement and state support to the private partner at the expense of the state budget.
There are 51 registered industrial parks in Ukraine in various sectors (automotive, light and food industries, agriculture, etc). However, their functioning and development have been rather limited, given the lack of real state incentives that are typical for other European countries. In this regard, the government has introduced a number of initiatives to develop industrial parks. In particular, at the end of 2021, the Law of Ukraine "On Industrial Parks" underwent significant changes, and the regulatory framework was constantly updated in 2022.
The following tax and customs benefits are provided for initiators, management companies and participants of industrial parks:
The government has also adopted a number of additional acts that allow for the introduction of these privileges and other types of state incentives for industrial parks from the budget.
The adopted amendments will stimulate the creation and development of industrial parks that can be used as sites for relocating enterprises from the occupied territories, creating logistics hubs or locating foreign investors՚ production facilities.
"Quick" investments to restore Ukraine՚s economy during martial law and the reconstruction period
A draft law was developed to simplify the regulation of land relations to ensure the rapid implementation of investment projects aimed at restoring Ukraine՚s economy during martial law and the reconstruction period (ten years). The draft law is intended to:
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