The main and only source of real estate law in Ukraine are the relevant statutes.

In 2022, the real estate market suffered significant losses due to the full-scale invasion of Ukraine by Russia. Businesses were forced to abandon the implementation of new projects, given the constant threat of rocket attacks.

According to public information, in 2023 Ukrainians purchased 1.7 times more property than in 2022, though still less than in 2021.

However, despite the difficult situation, many Ukrainian developers have continued their activities.

The privatisation and leasing of State-owned properties showed successful results despite the situation in the country. In the first three quarters of 2023:

• more than 300 privatisation auctions were held, raising UAH2.7 billion for the State budget; and
• 1,229 lease contracts of State property were concluded, which involved UAH572.15 million for the State budget.

Of the significant transactions in the real estate sector, mention should be made of the privatisation of the “Ust-Danube” seaport, as this was the first case of privatisation of port assets in Ukraine.

Ukrainian authorities have actively worked with international financial organisations and foreign governments throughout the past year in order to contribute to post-war reconstruction.

COVID-19 has had no further real impact on the real estate market. Rising inflation and increases in interest rates have resulted from the escalation of the Russian invasion of Ukraine.

Also in the Ukrainian market, real estate sellers have, for several years now, discussed the possibility of structuring transactions using new tools such as blockchain and defi, though this is mostly just a marketing ploy and not a common practice.

Construction Reform

An ongoing reform of the construction sector began in 2021, including replacement 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.

Past years have 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.

In December 2022, a new law introducing urban planning reform was adopted. It provides for the digitalisation of administrative and other services in the field of urban planning, and for the introduction of private urban planning control. However, the law still awaits being signed off by the President of Ukraine (as of March 2024), and many discussions regarding the changes proposed by this law are ongoing.

Urban Planning and Land Decentralisation Reform

Another important reform that was implemented in 2021 provides for:

• transferring previously government-owned land to local municipalities;
• simplification of changing the designated use of land plots and related procedures;
• approval of detailed plans of territories outside settlements by municipalities instead of local state administrations (which are central government bodies); and
• the introduction of a new type of urban planning document – a complex plan of spatial development of the community, and numerous other changes in urban planning.

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 was introduced that provides for the simplification of the construction of transport infrastructure facilities. 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 the EU.

Freehold and leasehold are the main titles. There are, however, some “exotic” title forms, inherited from Soviet times, which sometimes emerge in transactions. Among the new instruments are transactions with special property rights to construction in progress, which have recently appeared on the Ukrainian real estate market and have not yet gained significant popularity.

The main laws applicable to the transfer of title of real estate are:

• the Civil Code of Ukraine;
• the Commercial Code of Ukraine;
• the Law of Ukraine “On State Registration of Property Rights to Immovable Property and Their Encumbrances”; and
• the Law of Ukraine “On Privatisation of State and Municipal Property”.

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 via 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.

Due diligence (DD) usually includes:

• the verification of various public registers (including litigation and insolvency registers, and title register);
• review of title validity;
• encumbrances;
• title transfer history;
• effective urban planning documents;
• disputes; and
• leases.

The presence of sanctions imposed on the counterparty and related parties is also reviewed.

The full-scale invasion of Ukraine by Russia had a significant impact on the DD process. Due to limited access to registers, not all information can be found in the public domain.

Warranties were only introduced into Ukrainian law in July 2021, and this is 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 on the 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, where 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 forgoing 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 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 that another 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 governmental taking of land or real estate, as set out below.

• When a person acquires land that they are not entitled to own (eg, if a foreigner acquires agricultural land) and does not dispose of it within one year.
• Where a compulsory purchase of land or real estate for public needs is possible (eg, the construction of roads of State significance, and of airports). In both cases, this is done through a court and compensation should be paid.
• The expropriation of land or real estate in connection with the introduction and implementation of martial law measures is also possible. In this case, expropriation is carried out by decision of the military command.
• Lastly, in 2022, in connection with the full-scale invasion of Ukraine by Russia, the institution of seizure of property into State ownership was introduced as a type of sanction.

An asset deal is subject to 20% VAT. The sale of an undeveloped plot of land is VAT-exempt. If the buyer is an individual, a pension duty of 1% of the property value applies. Stamp duty is 1%.

For land and real estate, notarisation costs will apply, in particular for certifying 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 on foreign investors acquiring 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 certain restrictions, in particular:

• in settlements – the plot can only be purchased along with the real estate located on it, or the plot can be purchased for construction purposes; and
• outside settlements – the plot can only be purchased along with the real estate located on it.

However, in practice, certain legal structures do 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, 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 certain restrictions.

Generally, there are no restrictions on the repayment of loans in favour of foreign lenders, though the loan agreement and all addenda thereto are subject to registration with the National Bank of Ukraine.

Due to 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 adjustment 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.

No restrictions on foreclosure were implemented in response to the COVID-19 pandemic.

For the period of martial law (which has been in force in Ukraine since 24 February 2022), and for another 30 days after its termination, lenders are deprived of the right to compulsory foreclosure of real estate under mortgage agreements entered before the introduction of martial law.

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
• 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, where the borrower prematurely performed its obligations or undertook excessive liability that led to insolvency).

Due to the intensification of the government’s housing programme, all costs of concluding a contract and registering real estate have been transferred to the borrower – the buyer of such property. As a rule, the bank charges a commission of 1%, and the new owner must also pay for mortgage insurance (0.25% of the value). Personal income tax of 5% may also be payable if the property has been owned for less than three years, and if it is the second sale in a calendar year.

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.

State standards are 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 for protection zones, sanitary protection zones and cultural heritage areas. Some restrictions may prohibit the construction of residential real estate, while others may prohibit any construction whatsoever.

Several stages of development may be involved, depending on the project. The developer may need to:

• prepare a detailed plan of the territory and obtain approval for it;
• 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 are involved and raise an objection. The greatest likelihood of third parties objecting is during 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 where 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 will refuse to allocate the land if the intention of the construction contradicts the aforementioned documents.

Secondly, the controlling authority may refuse to issue the construction permit.

Lastly, depending on the restriction, a certain controlling authority may exist that can inspect the facility. For instance, an authority exists that inspects land, and 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, various entities may of course be used by investors. Besides those already mentioned, there are also:

• additional liability companies;
• full liability companies and commandite companies (types of entities close to full and limited partnerships);
• private enterprises; and
• 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 business entity by shares of a certain nominal. This is a more advanced type of entity that is more suited to larger structures with elaborate corporate governance. The JSC may issue different types of shares; the shares of a JSC are securities and are stored by a depository institution. The procedures for convening the general shareholders՚ meeting, formulation of agenda, etc, are more complicated in a JSC. Furthermore, JSCs may conduct a public offering of shares.

There are no tax benefits under the general rules for these types of entities.

A real estate investment trust (REIT) in Ukraine is a publicly available mechanism for investing in real estate. However, it is not popular and is only beginning to attract investors. Only a few companies provide such services. The advantages of this investment mechanism include:

• a low entry threshold (it can go as low as USD150); and
• a reduced personal income tax rate for income received through REITs.

The minimum capital required to establish an LLC is UAH0.01; and is UAH1.34 million 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. The LLC՚s charter may provide for limitations of the director’s powers.

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.

The Corporate Transparency Act does not apply in Ukraine.

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 leasing 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 ongoing regulation of rents or lease terms that resulted from the COVID-19 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 leasing of public assets (State and communal properties).

There is a high level of discretion regarding the length of a lease – ie, such length is not regulated and largely depends on the business cycle of the tenant. The usual length is:

• five years for an office lease;
• five to ten years for a retail lease; and
• one to three years for a residential lease.

For major retail, anchor tenants usually insist on 20 to 25 years. Also, the lessee will commonly want to have the option of prolongation.

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 (ie, the rent, plus the operating expense (OpEx), utilities and marketing payments) are paid in local currency (Ukrainian hryvnia), while the actual rates of the principal/base rent and OpEx are nominated in foreign currency. Payments are made according to the actual foreign exchange (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 following the introduction of martial law, the actual commercial terms of leases were often waived, with the parties agreeing ad hoc on suitable commercial terms based on the actual economic situation.

There is usually a formula predetermining how the rent is changed – eg, a 5% increase per year, plus the rate of inflation and 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 OpEx, which is charged on top of the principal rent.

Usually, the utilities used on the premises are paid for to the relevant utilities providers based on metering devices, while the utilities used in common areas are paid for 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 demanded 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. Special treatment applies for the leasing of public assets, which is tightly regulated.

There is also 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 subleasing, but also subject to the lessor՚s explicit consent.

That said, the lenders usually insist on rent assignment covenants as a collateral, and commercial terms of leases are often subject to approval by the lenders.

The right to terminate a lease 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:

• uses the property against the designated use or in breach of the agreement;
• has subleased or assigned the lease to a third party without the lessor՚s consent;
• by their negligence poses a threat to the property; or
• did not conduct a capital repair if they were so obliged under the agreement.

The lessor may also sue the lessee for termination if 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 regarding 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; however, the notarisation fee can also be paid by the parties in equal parts or by the lessor, though this is quite 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 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 respective case law.

In the event of a breach of the lease (such as late payment of rent), the landlord may charge penalties, including annual interest on the amount owed. The landlord also has the right to keep the security deposit if the termination of the agreement is caused by the tenant’s breach of its obligations. The security deposit may be in cash or in the form of a letter of credit.

In the majority of cases, the price for construction works will be fixed, though the price for materials may be flexible.

The designer and the contractor may be different companies or the same company; 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 as well as the contractor shall give warranties on the quality of the goods and works, and shall undertake to compensate for 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; however, this 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 delays in the delivery of milestones and construction completion dates.

There may be 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, this 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.

As a 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. This makes such transactions more attractive from a taxation perspective, even if it involves a higher volume of transactional work (legal and financial DD, merger control, sales and purchase agreement structure, etc).

It should also 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 (ie, 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 January 1st of the tax year 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 through 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 be subject to prosecution.

Legal entities are subject to withholding tax on 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.