Lawyers of the company MORIS within the framework of the hotline of the project “Land without Corruption”, which is implemented with the support of the American people through the USAID AGRO Program, received an appeal with a completely ordinary, but at the same time complex question: “The land lease agreement has already expired, the process of concluding a new agreement with a new tenant is ongoing. But the harvest of the previous tenant is still in the field. Who does it belong to now?”. This is told by the lawyer of the MORIS legal company Vita Storozhuk.
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The situation is familiar to many: the land is sown, the agreement has expired, a new tenant is on the horizon – but there is no clear answer in the contract.
Such misunderstandings could have been easily avoided if the contract clearly stipulated from the beginning: by what date the harvest should be collected, what is the fee during the waiting and harvesting period, when and how exactly the plot is transferred after the harvest, and the penalties for violating such conditions.
What should be done if the contract is silent on this matter? Let’s figure out what the law says and how the judicial practice is formed in such situations.
If we are talking about land of collective ownership, unused shares or undivided plots that are leased through local councils, the Law of Ukraine “On the Procedure for Allocating Land Plots in Kind (on the Spot) to Owners of Land Shares (Shares)” allows the lessee to collect the harvest even after the end of the agreement.
At the same time, the lessee must compensate for the losses in the amount of the rent for the period from the end of the agreement to the harvest. A similar approach is applied during a state of war – for lands of state and communal ownership, as well as in cases of termination of lease or sublease agreements of lands of all forms of ownership that are in the right of permanent use or lease.
In other general cases, the question of harvesting after the end of the agreement remains unresolved – there are no relevant norms in the legislation yet. Although Bill No. 9603 was registered in the Verkhovna Rada of Ukraine, which proposes to obligate the lessor to grant the lessee the right to harvest if the agreement expired during sowing, cultivation, or harvesting. In this case, the lessee must pay the rent for the period of actual use of the land plot. However, this bill has raised many comments and has not been adopted.
Therefore, for now, it is necessary to rely on judicial practice, which often confirms the lessee’s right to the harvest if the land was lawfully cultivated within the contract period.
Court positions tend to support the idea that even if the contract term has expired, the lessee who lawfully cultivated the land during the contract period has the right to protect their harvest. For example, the Chernihiv Court of Appeal in 2021 (case No. 728/55/21) recognized the lessee’s right to sow winter wheat, as he had a legal basis to use the land during sowing.
Most courts refer to Article 775 of the Civil Code of Ukraine, according to which the lessee has the right of ownership to the fruits, products, income obtained by him as a result of using the property transferred to him for rent.
At the same time, courts also pay attention to the good faith of the lessee’s actions – for example, if the lessee sowed the land a few days before the end of the contract term, realizing that there are no guarantees of extension, the claim will most likely be dismissed. Instead, if the lessee acted in good faith: sent renewal letters on time, followed the extension procedure, waited for the contract renewal but received a refusal – the court may support them, recognizing the right to the harvest as a result of lawful and conscientious use of the land.
It is important to remember: the right to the harvest does not exempt from the obligation to return the plot to the owner on time and agree on the procedure for its collection. Otherwise, there are risks of disputes and demands from the lessee for compensation for untimely return of the land (rental object).
Therefore, to avoid legal disputes and unnecessary compensations if the contract does not regulate the harvest collection procedure, it is recommended to:
– conclude an additional agreement to the lease agreement, where to detail the conditions for harvesting, payment for land use, and the procedure for transferring the plot. It is important to do this before the end of the lease term, as changes can only be made to the current contract;
– if the contract term has already expired, the lessor should conclude a separate short-term civil law agreement (not a lease) that will regulate the harvest collection procedure. An alternative may be an agreement with the lessee or a new user for the purchase of crops. Sometimes parties settle these issues through official correspondence, relying on mutual good faith.
In conclusion, to avoid legal disputes and the risk of harvest seizure, it is best to clearly regulate all aspects in the contract before the end of the lease term.
If you have any questions or need consultation, you can always contact our hotline and receive free assistance from experts.
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MORIS lawyer, attorney Vita Storozhuk