Syhydyn V. Civil legal regulation of state registration of proprietary rights to real estate by the notaries of Ukraine

The dissertation is a comprehensive scientific research of civil law regulation of state registration of proprietary rights to real estate by notaries of Ukraine. In the dissertation the peculiarities of the emergence and historical establishment of the state registration of proprietary rights to real estate at each stage of the development of Ukrainian society are researched. The main periods of formation and development of state registration of proprietary rights to real estate on the territory of Ukraine and their features are allocated. It is established that despite the positive character of the innovations introduced during the reformation of the institute of state registration of proprietary rights to real estate and liberalization of the procedure for its implementation during 2004-2015, in particular, the extension of the powers of notaries in the field of realization of state registration of real property rights, providing open access to information about real estate objects, etc., the introduced changes led to abuses by unscrupulous subjects of state registration of real property rights. The ways of improvement of the institute of state registration of proprietary rights to real estate by notaries are offered. The notion of state registration of proprietary rights to real estate by the notaries is determined and its legal nature is clarified. It is established that as a legal institution the state registration of proprietary rights by notaries is a combination of legal norms regulating social relations regarding the recognition and confirmation by the state of the rights to real estate and their encumbrances. The said legal institution is a mixed institution that has a dualistic nature, since the relations between the applicant and the notary are characterized as public legal relations, but at the same time they have civil legal significance. The main features of state registration of notaries with proprietary rights to real estate are distinguished, among them: the legality of the registration actions of notaries, the unity of the registration system, the procedure of registration actions and the register of rights, regardless of the region and type of real estate, the priority of previously registered rights etc. The legal status and functions of the notary during the state registration of proprietary rights to real estate are investigated. It is established that both public and private notaries are officials (regardless of whether they are not in the civil service and not in the state of the state apparatus), whose activities provide adequate legal control in the area of civilian traffic. This exclusiveness of their legal status is manifested in the fact that the notary carries out the functions of state power (is the subject of legal relations, which consist in the sphere of realization of notarial activities, is empowered in this sphere and is obliged to adhere to the requirements of the law concerning the implementation of special procedures). The following functions of the notary as a registrar of real rights to real estate are singled out: 1) the law-making; 2) verification of information about other registered rights to a specific object; 3) ensuring the impartiality and evidence of the documents; 4) preventive; 5) defending of human rights; 6) provision of evidence; 7) informational. The legal grounds of the state registration of proprietary rights to real estate by notaries are classified and the procedure for the state registration of proprietary rights to real estate by notaries was described. It is argued that the grounds for state registration of real estate rights are more complicated than the list stipulated in art. 27 of the Law of Ukraine «On state registration of proprietary rights to real estate and their encumbrances», inasmuch as the grounds of state registration of proprietary rights may include not only the title documents (or a set of such documents), but also legal facts (transactions). The peculiarities of state registration of proprietary rights to real estate by notaries on the basis of court decisions and reservations about satisfaction of mortgagee's claims are revealed. It is established that the current legislation of Ukraine in the field of state registration of proprietary rights to real estate contains terminological inconsistency in the use of the concepts of «judicial decision» and « decision of a court», which are not the same in their meaning. It is proved that the out-of-court method of foreclosure for a mortgage, in contrast to the court method, allows the mortgagee to obtain an operative and real (in cash in the case of the sale of a mortgage on his own behalf) satisfaction of his claim, and the position of the courts is reduced to that court foreclosure is possible only if the methods of out-of-court foreclosure for a mortgage have not resulted in a positive outcome for the creditor. The peculiarities of state registration of proprietary rights encumbr