The agreement on the emphytesis concerning land for agricultural needs and peculiarities of judicial protection of the parties to such agreement

Abstract

The article is devoted to the specifics of the normative and legal regulation of the contract of emphytheusis and its judicial practice, in which the right has a place, regarding the use of a plot of land for agricultural purposes.
 In the scientific literature, there are several approaches to defining the concept of emphytheusis. In particular, it is considered that this is a contract of use, which establishes a land easement, and as the right to own and use someone else's land plot for personal needs.
 It is an absolute fact that the current land legislation does not determine either the terms or the procedure for payment under the contract of emphyteussis. This means that the parties must determine these essential terms of the contract independently, which is essentially not only the duty, but also the right of the parties to such a contract. Failure to take into account and settlement or improper settlement of this issue may have negative consequences in the field of performance of such a contract.
 It is these problematic issues that most often become the subject of their judicial review. Of course, the long-term duration of such contracts does not take into account the inflationary components of the increase in the normative monetary value of land, other force majeure circumstances or changes in legislation, etc.
 These and other facts and circumstances definitely affect both proof and enforcement in the field of judicial protection of the rights of the parties to the emphytheusis contract. It is for these reasons that the author notes that judicial practice is not as unambiguous as it would be desirable. In this regard, the work examines the practice of the Supreme Court, which is essentially final in nature. At the same time, the work conducts a legal analysis of changes in the current legislation of Ukraine in the field of land use during the current state of war.
 The author also analyzes the issue of the automatic extension of emphyteusis treaties, based on their termination after the introduction of martial law in Ukraine. In addition, the work draws attention to the presence of legislative gaps, which courts overcome at the expense of judicial law-making in the field of emphytheusis legal relations, in connection with which the author provides suggestions on ways to eliminate them.