"Privatization of the Ust-Dunai port may be canceled due to errors of the FSMU during the preparation for its sale", "The first sale of the port in independent Ukraine is at risk of disruption" - similar information appeared in many Ukrainian media in recent weeks.
The Vinnytsia company "Elixir Ukraine", which already at the beginning of 2023 purchased the Ust-Dunaisk MTP at an auction, located in the extreme south of the Odesa region, has not yet put the facility into operation. Stakeholders interpret the threat of disruption of a large-scale investment project in different ways - from unprofessional actions of the State Property Fund of Ukraine to an internal conflict between port operators working in the port.
Taking into account the importance of the work of the Danube ports of Ukraine in the export of grain (especially after the unilateral termination of the "grain agreement" by Russia) and their impact on the economic and social situation in the Odesa region, the editors EliteExpert thoroughly studied all the available documentation on this problem. The purpose of the investigation was to establish the true cause of the ongoing conflict, and looking ahead, let's say, its results revealed numerous facts of incompetence, negligence, and perhaps deliberate intent in the entire power vertical and various departments. But - about everything in order.
WITH A SLIGHT MOVEMENT OF THE HAND, THE NUMBER "I" TRANSFORMS...
To begin with, we armed ourselves with two voluminous documents - technical passports for the complex of buildings and structures of the port office "Kilia" of the Ust-Dauna sea trade port. One of them is dated August 30, 2013 and was issued by the Kili District Bureau of Technical Inventory, the other is dated September 30, 2021, issued by "Nove BTI" LLC (Odesa). Technical passports are practically identical, with a small exception, but this exception became one of the main stumbling blocks on the way of the entire further process.
In the plan of the object in the technical passport of BTI from 2013, under the number I, the zone "Paving (Yard buildings)". After comparing the plan with the terrain, we established that it is a road that belongs to the state-owned enterprise "AMPU" and which, according to the Law of Ukraine "On Sea Ports", cannot be privatized.
And under the number III of the same technical passport, the zone of another paving (yard structures), located in another part of the port point, is indicated.
However, in the technical passport from 2021, on the identical plan of the object, these figures change. The road, which in the first plan was marked with the number I, is now marked with the number III, and the yard structures from the number III are transformed into the paving area I. This seemingly insignificant fact will play a very significant role in the future.
In all the documents of different years, which we will rely on later, it is said that the zone paving/yard structures I — the same road that belongs to AMPU — is not on the balance sheet of FSMU, and therefore cannot be sold. This information wanders from one paper to another, until a completely different object suddenly appears in the technical passport 2021 under number I! Now, so important for the state that it cannot be handed over to private hands, it is no longer a road, but a site with farm buildings. Of course, it looks clearly strange and illogical, but we understand that if we rely on the technical plan of 2013, then there will be no questions. In it, under number I, a strategic road belonging to AMPU is recorded, and which, according to the legislation of Ukraine, cannot really be sold.
Let's dig deeper. The Register of Real Estate Titles reports that as of April 15, 2019, the title to the area Paving (Yard buildings) I and a number of other objects belong to the state in the form of State Enterprise "AMPU". And now the most important thing: since it is April 2019, the Register relies on the technical passport of the port from 2013, because the new technical passport - from 2021, does not exist yet! And in it, as we remember, the road itself is recorded under the paving zone I. But today, for some reason, it is not at all subject to alienation, but a much less valuable site with yard structures in the backyards.
Isn't it very strange? We do not claim anything, but it is logical to assume that these numbers in the technical plan of 2021 were changed precisely in order to remove the road from the list of objects that are not subject to privatization . Moreover, judging by the plan, whoever owns this road essentially gets exclusive access to the wharf and the ability to prevent anyone from going there, including other port operators, AMPU employees, border guards, etc., which entails a complete loss of state control over port and the AMPU's lack of access to the berth belonging to them.
It is clear that changes to such objects cannot be made by accident. Therefore, we assume that the change of zones could have taken place in the period from 2013 to 2021 by any internal document between the SE "MTP "Ust-Dunaisk" and the SE "AMPU". However, in this case, all the changes made should have been notarized and entered into the State Real Estate Register, which was not done - the new information was not recorded there. We do not know whether it is about banal negligence or falsification of documents. In order to find out for what reason and by whom the zoning of objects on the territory of the post office was changed, we have prepared official requests to the State Register, BTI, the Ministry of Infrastructure and Justice, as well as to the SE "AMPU".
93 IS NOT 100
Now we turn to the purchase and sale agreement of the Ust-Dunaisk port property complex dated April 14, 2023, concluded as a result of the auction between the FSMU and the buyer - Elixir-Ukraine LLC, and we find several more inconsistencies there.
Let's start with the fact that in paragraph 1.3.2 of the Purchase and Sale Agreement it is stated that the Unified property complex of the SE "Ust-Dunaisk Sea Trade Port", which the FSMU undertakes to transfer to the buyer, includes 94/100 shares of the Complex of buildings and buildings with a total area of 5179,4 sq.m. That is, it is immediately indicated that not the entire port is transferred to the buyer, as repeatedly stated by officials of the FSMU in the mass media (such information is published even on the official website of the State Property Fund), but only 94/100 of its share.
At the same time, on the very next page of the contract, it is emphasized that another 1/100 of the property complex, consisting of the pier, some structures, and the same "Pavement (courtyard structures) I", which remains in the property of the state, is not subject to alienation. Thus, in fact, FSMU sold not even 94/100 shares of the property complex, but only 93/100!
Such seemingly small things are very important, because they clearly show how many different readings are observed even with a cursory glance at the documents establishing the right of ownership.
WE ARE SELLING WHAT WE DON'T KNOW WHAT
There is also a section at the "Kilia" post office with a passageway and gates for entry and exit. Until recently, this plot was the property of AMPU, which was also not subject to sale, but a few years ago, by an internal document, it was transferred from the ownership of AMPU to the ownership of SE "MTP "Ust-Dunaisk", after which it was also included in privatization. The right of ownership was finally fixed for the port by the Decision of the Economic Court of Odesa Region in case No. 916/3270/15 dated 27.12.2018 (at the same time, the specified changes were also not notarized and not registered in the State Real Estate Register).
Now we turn to the document entitled "Information notice of the regional office of the State Property Fund of Ukraine in Odesa and Mykolaiv regions on the sale at auction of the object of small privatization - a single property complex of the state enterprise "Sea trade port "Ust-Dunaisk". (https://spfu.gov.ua/userfiles/files/port21_2.pdf ). It lists all official information about the object of privatization. In the section "Information about the object (immovable property)" in the property of FDMU, both the Passage and the zone are indicated Paving (yard structures) I-III .
However, at the end of the document, in Note 1, we read the following - "In the state register of property rights to immovable property, there is an entry No. 31174112 about another property right, namely, the right of economic assignment of the SE AMPU in relation to the objects "Prokhidna", "Yard buildings I" and others In the same place, it is noted that Prokhidna was transferred to the balance sheet of State Enterprise "MTP Ust-Dunaisk" by the act of acceptance and transfer dated August 28.08.2021, XNUMX, information about which is also not available in the state real estate register. Given that the transfer concerns a real estate object, the law provides for a certain procedure, namely: the completed deed of acceptance-transfer is subject to mandatory notarization, after which mandatory state registration in the real estate register. This was also not done.
There is obvious surrealism here. It turns out that in the official document about the property put up for sale, it is specifically discussed that some of these property objects have other ownership rights. And accordingly, if someone's personal interest is excluded, it is absolutely unclear why, during the preparation for privatization, such disputed objects were not excluded from the list of property in order to avoid lawsuits, which are quite predictable.
INTERESTS OF THIRD PARTIES
At the same time, due to legal irresponsibility, private companies, which have become involuntary participants in this economic dispute and are now forced to prove their right to ownership of objects in the post office, are also suffering.
At present, three port operators are operating on the territory of the Kiliya port point of the Ust-Dunai port - SE "MTP Ust-Dunaisk", LLC "Kranship" of the "Transship" group of companies, and LLC "Grain Terminal Kiliya" (LLC ZTC "). However, during the sale, their interests were not taken into account - it turns out that they were simply run over by a powerful car.
Meanwhile, the integral property complex of the port is jointly owned by the Federal State University and LLC "Seaport Danube Kilia" (LLC "MPDK"), affiliated with the port operator LLC "ZTK", in the following shares:
94/100 shares of the complex of state-owned buildings and structures are on the balance sheet of SE "MTP "Ust-Dunaisk", and 6/100 shares of the complex of buildings and structures are owned by MPDK LLC and leased by ZTK LLC. This share was acquired at auction in 2007, then twice approved by court decisions, resold and not appealed - moreover, the people who control it have not changed from 2007 to the present.
In addition, since 2003, LLC "ZTK" has privately owned yard buildings on the territory of the "Kilia port point", namely: hangar "Ch", weighing house "C", grain processing complex "C", which was also repeatedly confirmed in court by decisions Commercial Court of Odesa Region No. 916/2514/21, 916/2925/21 and 916/1828/22, which entered into force, in accordance with the decisions of appellate courts.
The absurdity of the situation with the property of LLC "ZTK" is that the FSMU does not claim and does not sell objects of LLC "ZTK" at auction, which is also confirmed by the sales contract with LLC "Elixir Ukraine", but these objects, according to with the Register, are included in the share of 94/100 of the complex of port buildings! That is, for unknown reasons, the property of LLC "ZTK" was first included in the share of 94/100, and then, during the preparation of the port for privatization, was not excluded from the Register .
Thus, having publicly declared that the entire property complex of the port is being auctioned, and having created a demonstrative information noise in the mass media, in fact - disinformation, the FDMU was actually perfectly aware of the difficult situation surrounding the port. At the same time, the mess in the Real Estate Registry remains to this day, six months after the auction.
According to LLC "ZTK" and based on relevant documents, before the privatization of the port, the FSMU did not distribute property in kind and did not separate the state share of the port, did not exclude from the Register objects that accounted for 94/100 of the share and were not subject to privatization (including including strategic objects of the port infrastructure). In this regard, court cases No. 910/4588/23 are currently being considered in the Commercial Courts of the Odesa region and the city of Kyiv; 916/102/23; 916/186/23; 910/6314/23 on cancellation of the auction, contract and orders of the FSMU, exclusion of unnecessary objects from the Register, as well as on the distribution of property of co-owners.
Due to the fact that the property was "sold" by the Fund undivided and unallocated, mixed with other people's property, including the strategic state property of AMPU, the privatization of which is prohibited by law - even the state registrar does not have the right to register it to a new owner. However, when the deal stopped, apparently to avoid responsibility for the impossibility of completing the privatization procedure, an information campaign was launched in the press, saying that the sale is failing not because of mistakes in the process of preparing the documentation, but because of obstacles from third parties, including because of complex relations between the port operators "Kranship" and "ZTK" working in the port. However, it is unlikely that such an interpretation of the situation is in favor of these two private operators.
According to our information, documents for the privatization of the sea trade port "Ust-Dunaisk" were prepared by the director of the corporate management department of the State Property Fund of Ukraine Yuriy Cherdyntsev. Yuriy Martyniuk headed the state-owned enterprise "MTP "Ust-Dunaisk" at that time. And an interesting fact — immediately after the property complex of the port was put up for sale, and the bidding took place, both people who were directly involved in this process were quickly removed from their positions — both Cherdyntsi and Martyniuk. Whether this is a coincidence or not remains to be seen.
"ERRORS" COST IN MILLIONS
As part of the investigation, we came across the sad fact that literally the entire vertical of the government — starting with the officials of the FSMU, who were preparing documents for privatization, and ending with the Ministries of Infrastructure and Justice, clearly turned a blind eye to the poorly prepared documents and the complete inconsistency of some data with others, striving to sell the port as soon as possible. We analyzed only one object out of thousands for which they are responsible. If, analyzing one specific situation, we saw many inconsistencies and mistakes, lack of proper legal support, documentation that is not brought into line with each other, ignoring the property rights of third parties, then it is not difficult to imagine how things are in hundreds of other similar cases.
Another question is if we are not talking about banal stupidity, but about evil intent and profit: maybe it is just beneficial for someone in the power vertical to have such a mess in the documents, with legal support, etc.? After all, every such "mistake" on paper risks turning into millions and millions of hryvnias in real life.
As for this privatization, there is only one way out of the situation: it is necessary to carry out appropriate inspections, agree on the documentation among themselves, include all the latest data in the Register, and most importantly, avoid the temptation to transfer this process to the buyer of the port or private operators working there. After all, considering everything, the root of the problem is much higher...
Olena Ovchinnikova, Oleksandr Shorokhov
To always be aware of the most important things, read us at Telegram
