LETTER OF THE SUPREME ARBITRATION COURT OF UKRAINE

of January 28, 2013 No. 24-150/0/4-13

About practice of application by courts of the legislation by consideration of civil cases on protection of the property right and other material rights

On December 21, 2012 at meeting of plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases information on generalization of court practice of consideration of civil cases on protection of the property right and other material rights was discussed and taken into consideration.

With respect thereto we send extraction from the specified generalization.

1. The basic legal principles of regulation of the relations of property from which main thing is the principle of equal recognition and protection of all patterns of ownership are enshrined in the Constitution of Ukraine (the article 13, of 41 Constitution of Ukraine).

According to article 13 of the Constitution of Ukraine the property shall not be used to the detriment of the person and society. In such edition the constitutional regulation not only assigns to the owner of obligation, but also approximate specifies its obligation.

The fundamental principles of implementation of competences of the owner are formulated in article 1 of the First Protocol to the Convention on human rights protection and fundamental freedoms (Rome, on November 04, 1950) which became effective for Ukraine since September 11, 1997 and is the system of law constituting it according to requirements of article 9 of the Constitution of Ukraine.

By article 41 of the Constitution of Ukraine it is determined that everyone has the right to own, use and dispose of the property, results of the intellectual, creative activities. The property right is acquired according to the procedure, determined by the law.

Use of property cannot do harm to the rights, freedoms and advantage of citizens, interests of society, to worsen ecological situation and natural qualities of the earth.

Under property possession right legally secure possibility of the actual domination of the owner over property which is not connected with use of its properties is acknowledged.

The property use right is legally secure possibility of the owner to get from due to it property useful properties.

Understand legally secure possibility of the owner to determine destiny of property as the right of the order.

2. The moment of emergence of the property right to thing (property) is determined by the law.

In case of determination of the moment of acquisition of property right it is necessary to consider both features of the property, and feature of registration of the property right which too significantly influence determination of the moment of origin (acquisition) of the property right.

The property right is acquired on the bases which are not prohibited by the law, are determined in Chapter 24 of the Civil code of Ukraine (further - group of companies), in particular from transactions.

The property right to newly created real estate (apartment houses, buildings, constructions, etc.) arises from the moment of completion of construction (creation of property); if the agreement or the law provide acceptance of real estate in operation - from the moment of its acceptance in operation; when the property right on immovable according to the law is subject to state registration - from the moment of such registration. In case of need the property right to construction in progress, in the presence of the conditions determined by the law, can be registered by body which performs state registration of real estate (Article 331 of group of companies). Since the same moment there is property right to the remade thing created with use of another matter (material).

Courts by hearing of cases about recognition of the property right to illegal construction shall check properly whether the question of registration of the property right to illegal construction subject of consideration of competent state body which solution or its absence would give the grounds to consider about availability of dispute on the right was.

The court shall not replace bodies which shall issue construction licenses and approve buildings; recognition of the property right to illegal construction judicially shall remain exclusive method of protection of the right. Therefore courts need to find out whether the claimant addressed competent authorities concerning legitimation of illegal construction, whether it was refused by competent authorities the solution of the specified question.

Courts should mean that in case of recognition by the defendant of the claim the court makes the decision on satisfaction of the claim only in availability cases for this purpose of legal causes. If recognition by the defendant of the claim contradicts the law or violates the rights, freedoms or interests of other persons, the court dissuades in acceptance of recognition by the defendant of the claim and continues consideration of the case (part four of Article 174 of the Code of civil procedure of Ukraine (further - GPK).

By consideration and resolution of disputes about recognition of the property right to illegal construction courts shall be guided by regulations of Civil Code, the relevant legislation and consider the explanations provided in the resolution of plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases of March 30, 2012 to No. 6 "About practice of application by courts of Article 376 of the Civil code of Ukraine (about legal regime of illegal construction)".

In court practice cases of appeals to the court of citizens to which in the procedure established by the law the parcels of land for construction of apartment houses are provided are widespread. Having actually constructed them till 1992, citizens timely did not draw up the property right to them. The resolution of the Cabinet of Ministers of Ukraine of September 09, 2009 "About approval of the Temporary procedure for acceptance provided in operation of the private housing houses of farmstead type, country and garden houses with economic constructions and buildings built without the permission on accomplishment of construction works" ended by construction that the basis for registration of the property right to the private housing houses, country and garden houses built till August 05, 1992 constitutes BTI conclusion about technical condition of the building and the document which certifies the property right or uses of the parcel of land on which it is placed. The specified resolution voided on June 02, 2011. By the law of Ukraine of February 17, 2011 "On regulation of town-planning activities" it is established that acceptance in operation of the individual (farmstead) housing houses built till December 31, 2009, garden, country houses which are built without the permission on accomplishment of construction works is performed by inspections of the state architectural construction supervision by results of technical inspection of building constructions and engineering networks of such objects in the presence of the document which certifies the property right or uses of the parcel of land on which they are located.

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