amount of measurable units of the investment from the moment of the funds
transmission to the manager of FCF.
b.
Stage of contract fulfillment before the construction commissioning.
We can distinguish the following forms of rights circulation at this stage:
1)
The assignment of property rights (lease land rights, rights to the real estate or
to the object under construction) of the developer to the manger. According to the Part
2 of the Article 10 of the Law of Ukraine “On Financial and Credit Mechanisms and
Management of Housing Construction and Real Estate” [20] project manager and
developer for each construction conclude a contract on property rights on the object
under construction assignment with suspense condition. In case the developer doesn’t
fulfill the obligation under the contract on FCF participation, the property rights are
transferred to the manager. Thus, the assignment of property rights is a way to ensure
commitment.
2)
The assignment of contractual rights by the principal under a contract on FCF
participation. In case of full payment of the object price the principal can assign the
whole object of construction; with partial payments - just the right for a certain number
of measurable units of the investment. It should be noted that the assignment may be
made on a general basis provided by the Civil Code of Ukraine [2] under the sale, gift
and other contracts. This assignment is recorded in the accounting system of
contractual rights. In practice, such agreements can be carried out on different schemes:
a.)
The assignment of contractual rights on measurable units of the investment is
permitted only for FCF manager. For example, in the Article 2.2.2 of the sample
agreement for the FCF participation, established by the Bank “Forum” (manager)[21],
it was stated that “for the planned date of the construction object commissioning the
Principal has the right to assign the contract right and his obligations under this
Agreement in favor of Bank “Forum”. The peculiarity of such rights transmission is
that the debtor and creditor are combined in one person, and, accordingly, it would lead
to the termination of an obligation to participate in the FCF and the claim to the trustee.
However, this combination does not always entail termination of contract rights. The
problem lies in the use of the terms “bank” and “manager”. In our opinion, if in the
FCF participation agreement is stated that the rights assignment under the contract is
allowed to the “bank” (as described above), we must consider the bank as a separate
legal entity which has acquired a claim, rather than vesting manager.
To find out who is the “acquirer” of the right in action it is also necessary to
distinguish the accounts from which the payment has been made. In case of FCF
accounts payment, it may be suggested that such assignment is made in favor of the
“manager” because the costs of the funds’ members are received by the manager in the
administration and are segregated from other assets of the manager and costs from
other funds. However, if the payment according to the agreement has been made from
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