Le bail agricole en Ukraine comme instrument de réorganisation des opérations agricoles
Au cours de la phase la plus récente de la réforme agraire appliquée en Ukraine, le bail agricole est devenu le principal instrument juridique définissant les relations entre les paysans et les organisations agricoles. Les terres, qui étaient auparavant détenues en commun par les membres de fermes collectives, ont été subdivisées pour donner à chaque paysan une petite parcelle. Mais, dans un même temps, pour améliorer l'efficience de la production et résoudre le problème du vieillissement d'une population rurale inactive, les lois et règlements encouragent la réorganisation de ces parcelles sous le contrôle d'entreprises agricoles de taille moyenne ou grande.
En théorie, le bail assure aux paysans propriétaires un revenu stable et une gestion qualifiée et technique de la terre. Les paysans conservent également le droit de déterminer l'usage futur de leurs terres. Des responsables de la gestion agricole obtiennent le droit de travailler la terre pour toute la durée du bail, et sont chargés d'en préserver ou améliorer la qualité. Cela permet aux responsables de prendre des décisions opérationnelles avec une marge raisonnable de certitude. Toutefois, des carences aux niveaux de la législation, de la réglementation et des pratiques courantes en Ukraine ont pesé sur les résultats que l'on pouvait attendre d'une production agricole efficace et sur la stabilité des revenus des paysans. Cependant, le bail agricole, s'il est utilisé de façon créative, peut encore évoluer pour devenir un instrument produisant des avantages à la fois pour les paysans et pour les organisations agricoles.
El sistema de aparcería en Ucrania como instrumento para la consolidación de las operaciones agrícolas
En la fase más reciente de la reforma agraria de Ucrania, el sistema de aparcería se ha convertido en el instrumento jurídico más importante a la hora de definir la relación existente entre los campesinos y las organizaciones agrarias. La tierra que antes se mantenía en régimen de propiedad común compartida por los miembros de los colectivos agrarios se está subdividiendo para proporcionar una parcela reducida a cada campesino. Al mismo tiempo, con el fin de mejorar la eficiencia de la producción y afrontar el problema de una población rural inactiva y en proceso de envejecimiento, las leyes y los reglamentos alientan la consolidación de este tipo de parcelas bajo el control de empresas agrarias de tamaño grande o medio.
En teoría, el arrendamiento proporciona al campesino propietario unos ingresos estables y una ordenación técnica y eficaz de la tierra, sin menoscabar su derecho a determinar la disposición futura de la misma. La dirección de la explotación adquiere el derecho de trabajar la tierra durante el período del arrendamiento y se encarga de preservar y mejorar su calidad. Esto le permite adoptar decisiones operativas con una certidumbre razonable.
Sin embargo, las deficiencias de las leyes, los reglamentos y las prácticas actuales de Ucrania limitan los resultados previstos en cuanto a una producción agrícola eficiente e ingresos estables para los trabajadores campesinos. No obstante, el sistema de aparcería, si se emplea de modo creativo, puede evolucionar hasta convertirse en un instrumento ventajoso tanto para los trabajadores campesinos como para las organizaciones agrarias.
William Valletta is an attorney and regional development planner, who has worked in Ukraine and other post-Soviet states since 1993.
In the most recent stage of land reform in Ukraine, the agricultural land (share) lease has become the primary legal instrument defining the relationship between peasant workers and farm organizations. Land that was previously held in shared common ownership by members of farm collectives is being subdivided to provide each peasant worker with a small parcel. At the same time, in order to improve production efficiency and to deal with the problem of an ageing, inactive rural population, the laws and regulations encourage the reconsolidation of these parcels under the control of large and medium-sized farm enterprises.
In theory, the lease provides the peasant landowner with a stable income and skilled, technical management of the land. He or she also retains the right to determine its future disposition. The farm management gains the right to work the land, for the term of the lease, and is responsible for preserving and improving its quality. This allows the farm management to make operational decisions with reasonable certainty.
Although shortcomings in the laws, regulations and current practice in Ukraine restrict the expected outcome of efficient agricultural production and a stable income for peasant workers, the agricultural land (share) lease, if used creatively, can evolve further to be beneficial to both peasant workers and farm organizations.
The agricultural land (share) lease has been developed in the most recent stage of land reform (after 1999) in Ukraine. It originated from the legal forms of the lease and the agricultural land share, which were introduced in the earlier stages of perestroika (1988-91) and post-independence land reform (1991-94).
The lease was first defined as a mechanism for top-down allocation of land, buildings, equipment and livestock. Previously, under the Soviet system, these assets ("means of production") were owned exclusively by the state. They were transferred to the use of state and collective farms and, subsequently, allocated by their managers to subsidiary work units. No payment for the assets was required and the amounts and quality each unit received were defined by central planning in order to achieve a state order (quota) of products. Under the new instrument of the lease, these transfers were subject to negotiation and the right of use would be paid for as "rent". This would induce the farms and work units to determine for themselves the amount of assets they would need and to seek ways to increase productivity. In this way they could minimize their input costs (the rent) and maximize their profits (the difference between the input costs and the state order price).
The agricultural land share emerged in the process of enterprise "privatization". The state relinquished its monopoly control of productive assets, and state and collective farms reorganized themselves as cooperative agricultural enterprises (CAEs), with their worker-members as common owners. Their status was defined in relation to three "objects" of the new civil property rights:
The first reforms did not improve the efficiency of production or enhance the care and management of the land, as the reformers had intended. This failure appeared to stem from the incomplete responsibilities and benefits that the peasant worker-members gained in the "top-down" leases and shareholding. They continued to view the productive assets as inputs drawn from the collective stock and their own work as unrelated to the success of the enterprise. Without a clear delineation of personal assets and a direct relation between individual effort and profit, the worker-members had little incentive to increase productivity or care for the collective land and property.
Agrarian reformers sought new ways to enhance the status and motivation of the peasants, resulting in the "property share" and "land share" in a third stage of reform (1994-99). Each peasant worker-member gained ownership, individually or as part a work unit, of specific moveable or fixed assets and could employ these directly in production or lease them back to management. Each member also gained a common ownership right, undifferentiated, in the collective land holding. The status of this land share was strengthened in the following ways:
These three aspects of the land share and the "bottom-up" lease were expected to change the relationship between farm management and the peasant worker-member. Through possession of the certificate and lease, individuals would realize that they were possessors of a legally protected and economically valuable object. This would lead them to be more assertive when participating in farm decision-making and demanding care and improvement of the land. The right to demand delineation and withdrawal of the land share would also enhance their status. Such demands were likely to come when farm members were unhappy with management decisions and they would lead to disruption of the farm operations - surveying the land plots, trying to equalize their value by adjusting sizes and locations and deciding which farm members would receive which parcels. To avoid this, managers would have to adopt open and inclusive approaches, making sure that the worker-members remained well-informed and content.
During this stage of land reform, Ukraine's farms were reorganized into 11 400 CAEs and land shares were issued to 6.1 million worker-members. Once again, however, the reformers were disappointed because gains in productivity, management skills and peasant self-reliance did not result. Some commentators described the problem as the unchanged "psychology" of the peasants; others noted that the changes in legal forms were not accompanied by the necessary practical services to support the independent initiative of peasants and farm managers. The state retained control over input production and supply (seeds, fertilizer and machinery) and over product transport, distribution and sales. The courts and administrative tribunals did not develop simple or effective procedures for peasants to protect their rights. Village and regional administrations undertook planning, surveying, valuation and registration as administrative tasks, not as support services.
Most importantly, there was a fundamental flaw in the structure of the CAE. With its abstract land shares, it was not a stable legal or economic entity. Worker-members could, at any time, demand delineation and withdraw their shares; thus, a persistent threat of fragmentation and disruption hung over the farm. No one could predict whether the land and assets held today would be the same a year later. Long-term planning and finance, and asset-secured mortgages, were impossible. In 1999, the President and Government of Ukraine recognized these problems and ordered the creation of a new programme, in which all land shares would be systematically delineated "in nature" for all farm members.
Today, the transformation of land shares into land parcels is going forward. Each of the 6.1 million land share holders is receiving a land parcel, with its location and boundaries fixed "in nature" and with an ownership certificate (the "State Act"). In total, 26.4 million ha are subject to land sharing: on average, the parcels are 4.1 ha in size - smaller in western Ukraine, which has good access to water, and larger in the dry, eastern steppes. Upon receiving his or her State Act, each new owner has three options:
Many peasant shareholders are pensioners or close to retirement age and most of these are transferring their land (share) parcels to the large farms. In 2000-01, over 22.4 million ha of the total of 26.4 million ha have been leased. As a consequence, the large farms (successors to the CAEs) remain intact and another 3 500 medium-sized farms (average size 500 ha) have been created on the basis of leased land shares.
In this context, the contemporary agricultural land (share) lease is expected to create legally and economically stable farm holdings and a rural population with a secure income and long-term responsibility for care of the land. Whether these benefits will result largely depends on the way in which legal rights are defined by the lease and balanced, in a practical way, between the peasant landowners and the farm managers.
The analysis of the agricultural land (share) lease should rest on three considerations. First, in order to encourage efficiency in agricultural production, the lease should enable the peasant landowner to secure terms and conditions - especially a productivity-based rent - that will induce the management to make effective use of the land. The peasant should be able to monitor the activities of the management to ensure that land quality is preserved and appropriate improvements are made. From the farm management's point of view, the lease should give sufficient authority to make operational decisions without undue limitation and allow amortization investments during its term. Thus, the lease should establish a dynamic and cooperative relationship between the parties.
Second, during Ukraine's transition, the lease must be viewed in the context of other rural economic and social relationships. Previously, as a member of the collective or an employee of a state farm, the peasant held rights to employment, a pension, medical care, education, housing and welfare services. By reducing the peasant-farm management relationship to that of a simple property transfer, the lease requires the peasant to look to other instruments of law, politics and social institutions for social protection. To the extent that legal and institutional restructuring have left these undefined or incomplete, the "reforms" of property rights and leasing will be seen as a regression, rather than an improvement, of rural society and civil and human rights.
Third, as the mechanism for the transfer of land management responsibilities, the lease must be viewed in the context of the system of environmental law and state land-use control. In Ukrainian law, the rights of land tenure and the obligations of regulatory compliance are not separate, but are mixed or "balanced". The state land-management and other regulatory agencies, therefore, view the lease as an instrument of regulatory control. If this aspect is not limited, it may undermine the independence of the lessors and lessees and weaken their self-reliance.
The current Ukrainian laws and regulations fall short of meeting these considerations, as can be seen in the sections below, which focus on specific aspects of the law and practice.
The land share and the agricultural land (share) lease are defined in four fundamental laws. The Civil Code, revised in 2001, defines individual and common ownership, the mutual rights of shareholders and the procedures by which they determine the use and disposition of property. The Land Code of 2001 defines the permissible rights of tenure in agricultural land and authorizes the transfer of the lands of former state and collective farms to their worker-members. It also describes the system of state land management and control. The law On Lease of Land of 1998 defines the lease as a civil law agreement between independent parties, describes its content and sets the procedures for its creation. The law On Payment for Land of 1992 defines rent, calculated in relation to the "cadastral" value of land and subject to negotiation between the parties. Supplementing these laws are numerous regulatory decrees, particularly the Decree of the President of 3 December 1999, "On Urgent Measures to Accelerate Reforms in the Agrarian Sector", which ordered the transformation of land shares to land parcels. A Model Land (Share) Lease is contained in the Order of the State Committee on Land Resources of 17 January 2000. Taken together, these legal Acts provide a coherent system of land sharing and leasing. However, within the details, numerous ambiguities and contradictions remain.
The land share encompasses a group of rights held by each peasant as a common owner and worker-member of the farm. These include, among other elements, participation in decision-making about the use and disposition of all the land (not just the individual's share), entitlement to part of the total profits derived from use of the land and a corresponding share of liabilities. The share also includes priority rights of the shareholders to buy each other out and to approve share sales to new common owners (outsiders).
The law On Lease of Land provides that the share can be leased, without first being transformed into a land parcel. Although some legal commentators have argued that this is contrary to the Civil Code (which presupposes an "object"), in practice, many such leases have been written and they remain in place. When the shares are transformed into land parcels a new problem arises: whether, on acceptance of the State Act of Ownership, the peasant must surrender the share certificate and forfeit the common rights and obligations it represents. The Land Code, in its Transition section, states that the certificate remains valid until the land is "withdrawn" and the State Act is issued. This appears to cover the situation in which the individual chooses to farm independently or transfers his or her plot to a new independent farm. However, if he or she intends to keep the newly plotted land parcel under lease to the large farm, does the share remain valid? If the share is already under lease to the farm, does the lease continue to the end of its term or is it necessary to create a new lease? Are the rights of the individual different if he or she is a pensioner, rather than an active worker-member of the farm?
These questions are important because, during subdivision, some land is retained in common - land under internal roads, buildings and non-agricultural activities, areas planted with trees for windbreaks, etc. Does the individual retain common share rights to these lands or does the farm management acquire them in a form of "enterprise" ownership? Similarly, questions arise about the other rights of the worker-member. Does the share or lease continue to provide a right to participate in decision-making, or are these rights retained under other laws (on employment, perhaps)? Does the individual retain rights to dividends, based on the profits of the total farm operation, which are paid over and above the land rent, and do the corresponding shared debt obligations survive?
The commentators answer these questions in different ways. As evidence of the survival of the land share, in practice, it appears that notaries and registry officers require both documents - the share certificate and State Act - to be produced for transactions. This administrative requirement shows that, in the minds of cautious bureaucrats, limitations imposed in the land share must carry forward to subsequent legal Acts. The same idea should apply to rights.
The agricultural land (share) lease must be a written document, signed by the peasant landowner and farm manager, notarized and registered in the village Land Resources Office. Although in form it is a civil law agreement, the processes of notarization and registration make it subject to substantive review by state officers and its final registration takes the form of an order or approval by the village or regional executive board. The lease has no validity until this order, or approval of registration, has been issued.
The content of the lease is described in the law On Lease of Land, which requires the inclusion of certain clauses defining the relationship between the lessor and lessee. These include a statement of the transfer of possession and use of the land to the lessee, a description of the "object" (location and size of the parcel), the rent, the term of years, and the party that holds the risk of damage or destruction. Mandatory clauses, related to the system of state land-use control, are discussed below. Other clauses, specifying particular conditions or mutual obligations, may be added by the parties.
The fundamental problem with the description of the lease content is an underlying assumption that the parties are of equal status and can bargain effectively to define their interests. The law On Lease of Land is written to cover all situations, rural and urban: "top-down" leases of state- and enterprise-owned lands to subsidiary units, parallel leases between enterprises, as well as "bottom-up" leases between peasant landowners and farm management. Ukraine has not followed the practice of many other nations, which define agricultural leases in special laws, designed to protect small tenants or landowners who have weak bargaining power. Instead, Ukraine's laws and regulations tend to describe the creation of the agricultural land (share) lease as an administrative process, supervised by state officers, rather than a negotiation between independent parties. This bias can be seen most clearly with respect to the calculation of rent.
The law On Lease of Land (Article 19) states that "the amount, form and terms of rental payments shall be established as agreed between the parties" and it allows the parties to determine the form of payment - in money, products or services. The 1999 Presidential Decree, which ordered the transformation of land shares into land parcels, provides that the rent must be "not less than 1 percent of the value of the land parcels, as determined under the law [On Payment for Land]". The Land Code of 2001 (Transition section) states that the "land lease fee shall not exceed the land tax". Thus, for the agricultural land (share) leases, the rent is fixed by administrative procedure. Under the methodology for land valuation, defined in a government decree, the value rests on "objective" factors (measurements of soil fertility and moisture content, and location factors). In reality, therefore, the parties have no bargaining power with respect to rent.
As for the term of years, there is conflicting guidance. In a situation of independent bargaining, farm managers would tend to seek the longest terms possible (50 years as per the Land Code), in order to stabilize their operations and offer security for credit. The peasant landowners would tend to prefer short terms, the length of which would depend on their ages and family situations. In a letter published on 17 September 2001, the Ministry of Agrarian Policy advised that the preferred practice is to write short-term leases with subsequent extensions. (A short-term lease is defined as less than five years in the Land Code.) Other commentators, however, have noted that 25-year leases of land shares are used on many farms.
The Model Lease of the State Committee on Land Resources exhibits a bias in favour of the farm management and envisions a passive peasant landowner. It contains the required clauses stating the transfer of possession and use of the land for the period of years in return for a commitment to the timely payment of rent. It obliges the lessor (peasant) to refrain from interfering in the productive activity of the lessee (farm management), withdrawing the land parcel or unilaterally changing the lease agreement. It obliges the lessee (farm management) to make use of the land as legally designated, to preserve the land quality and ecological situation, to pay the rent on time and to return the land at the end of the term in a condition suitable for its continued use. The Model Lease contains no language dealing with notices of changed conditions and does not require the lessee (farm management) to give accounts or periodic reports of its performance to the lessor. It does anticipate that the lessee may wish to postpone the timing of payment of rent and requires the agreement of the lessor for this.
By law and in practice, the peasant has limited choices for disposing of his or her land (share) parcel when the State Act of Ownership has been received. Although the Civil Code allows a property owner to dispose of it by sale, exchange, bequest, lease, right of use, pledge or dedication to the capital fund of an enterprise, these options do not apply fully to agricultural land and shares. First, the Transition provisions of the Land Code prohibit, until 2005, the sale, pledge or dedication to a business partnership capital fund of agricultural land. Second, the law On Lease of Land limits the permissible lessees of agricultural land to juridical persons (agricultural production is defined as such in the formative Charter of a farm enterprise) and physical persons who are qualified (by education or experience) as farmers. Third, from a practical standpoint, the number of farm organizations or independent farmers competing for land parcels in most regions is very low. The location of the land plot (within the massif or at its periphery, adjacent to a main road, etc.) will also determine whether or not the peasant land share owner can, in reality, withdraw the land plot.
Politics, ideology and corruption appear to be at work in many regions, preventing peasant land share owners from exercising even these limited rights. Prosecutors in some regions have taken action against farm managers, who have colluded with village officials to thwart the land (share) distribution and prevent the withdrawal of parcels. In many cases, farm managers and village mayors have refused to distribute the share certificates, locking them in a safe. Others have manipulated the lists of farm members to disenfranchise some peasants or gain extra land for themselves by adding the names of family members or dead people. Even without corruption, however, the essentially administrative nature of the shareholding, land subdivision and leasing processes has allowed farm managers and local officials to suppress peasant initiative.
As mentioned above, many administrators view the lease as an instrument of state regulation of land. The law On Lease of Land requires the lease agreement to contain as essential clauses a statement of the designated ("target") use of the land, conditions related to preservation of its quality, and other existing restrictions and reservations binding the land. It also requires that the land parcel plan be appended to the agreement. These requirements provide evidence that the land tenure right, created in the lease, is linked directly to the systems of planning, cadastre valuation and land arrangement (zemleystroistvo), which set the regulatory terms and conditions. Violation of any of these environmental, land-use or planning requirements subjects the landowner (peasant) and the lessee (farm management) to civil and criminal penalties and may lead to nullification of the lease and confiscation of the land ownership right.
Because of this linkage, the state agencies take an active role in drafting lease clauses and reviewing and approving each lease in the registration process. The Model Land (Share) Lease of the State Committee on Land Resources includes several clauses that transfer to the farm management the responsibilities of compliance with the environmental and land-use regulations, and the responsibility for paying the land tax. These responsibilities do not remain with the peasant land share owner. Certainly, it is more convenient for the administrative agencies to deal with the large farms and more consistent with their Soviet-style methods of monitoring and enforcement.
Despite the bias in favour of the farm management's interests, the agricultural land (share) lease is not defined in a way that takes into account aspects of farm business management and finance. In particular, the Model Land (Share) Lease ignores questions of land mortgage and relationships of the parties to third party creditors. This reflects the continuing ideological debate over the use of land as security for loans and the fear that foreclosures will lead to the eviction of peasants from the land. Lacking compromise, the Land Code of 2001 has postponed these questions by imposing a "moratorium" on the sale and pledge of agricultural land until 2005.
Thus, no guidance has been given on how the lease should define the mutual obligations of the parties if one or the other wishes to mortgage the land as security for a loan. Are there requirements of notice between the parties? What rights and obligations arise in the event of default? Are there priorities or procedures if non-secured creditors take action against the land?
The Model Land (Share) Lease contains clauses stating that the lessor retains the right to transfer its ownership to another party, on condition that the lease agreement remains in force, binding the new owner. However, if the lessee liquidates or is reorganized, there is no parallel language clarifying the status of the relationship. The law On Lease of Land is clear on one point: the lessee has no power to sublease the land or alienate the leasehold, even though in many circumstances this may be a reasonable financial or business strategy.
The Ukrainian press has presented a number of strong critiques of the practice of land sharing and leasing. In January 2001, the government issued statistics to demonstrate the success of its programme of the previous year. Over 22.4 of the 26.4 million ha of shared agricultural land were held under lease by large and medium-sized farms and the rent payments made to the peasant owners totalled 1.6 billion hryvnias (US$300 million). Reporters in the field, however, calculated that this amount was equal to about US$7.50 per land share, yielding about US$18 on average to a rural family. In most cases, the rent was paid in kind (sacks of potatoes or chickens) or in services (spring ploughing). Although in 2001 the rent would increase, with the escalation index, to over 2 billion hryvnias, it still fell far short of the goal of reform - to ensure a stable income for the peasants and pensioners based upon their land ownership right.
With the laws in place, it appears now to rest on the work of lawyers, local officials, administrators, international donors and the peasant landowners themselves to use the agricultural land (share) lease in practical ways to construct relationships that are consistent with modern farm operations and business and financial practice. Most of the shortcomings in the law noted here can be overcome by drafting the leases creatively - inserting clauses that better reflect individual situations and that anticipate a more dynamic relationship between the parties. There will be resistance from state agencies and some farm managers and village officials. However, in many rural regions there are groups and individuals who are willing to use the tools of law and administration and the institutions of society (the press, the churches, non-governmental organizations) to advance the interests of peasant families. The agricultural land (share) lease can be an important instrument for further reform.
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Land Code of Ukraine, revised (adopted 25 October 2001, signed and published 15 November 2001, effective 1 January 2002).
Law On Collective Agricultural Enterprises, No. 2114-12, 14 February 1992.
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