For the detailed research of the contractual and property rights in investment
activities, it is seen useful to analyze such rights in specific spheres of investment. O.M.
Vynnyk points out the following economic and legal forms of investment: innovation
investment; capital construction; leased investment; investment concessions; other
economic and legal forms of investment.
As long as the investment relations cover a large area of relationships, it is needed
to analyze the most problematic forms of investment.[13] We will pay attention to
some aspects of investment into capital construction and circulation requirements in
this area.
2. Construction investments. Ukrainian courts handle a great amount of cases
dealing with the property right exercise and its protection. However, the court practice
demonstrates that courts do not always adhere to the common approach to application
of the legislation in this category of cases. For instance, a lot of problems arises during
the interpretation and application of provisions of the Article 331 of the Civil Code of
Ukraine [2] on recognition of the property rights to the real estate newly created and
the construction in progress, their separation on disputes between spouses that are
rather widespread for today [14]. Under the Article 331 of the Civil Code of Ukraine
the property right to construction in progress cannot be recognized as a real estate in
judicial proceeding. At the same time, there are a lot of cases where the court
recognizes property rights for the separate thing which is a part of the object under the
construction.[15] The object under construction cannot be defined as real estate,
however things it consists of is a movable property.
The second thing the courts stress on is that under the legislation of Ukraine the
recognition of property and the recognition of the rights to the property which arises
under the contract are two different types of protection. If a person concluded an
investment agreement on the construction of the house, he/she enjoys contractual rights
on the property construction. The Supreme Court of Ukraine defined such right as a
“right to wait” for the property acquisition [16]. However, it doesn’t mean that the
investor automatically get the right on the property recognition.
Part 3 of the Article 4 of the Law of Ukraine “On Investment Activity” [3]
consolidates the provision that investment and financing of the construction of housing
projects with the use of private funds raised from individuals and legal entities,
including management, are permitted only through Fund on construction financing
(hereinafter - FCF), Fund on real estate operations (than - FREO), institutions of the
collective investment and also by issuing target obligations, the realizations of
obligation are provided by the unit of such property in accordance to the legislation.
Mykolayiv District Court of Lviv region considered the case of the ownership
recognition. The case dealt with the problem that Person_1 (customer) and Person_2
(developer) signed a contract for the construction of the house where the customer had
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