31.07.2022
1147
Conclusion of the Supreme Court of Ukraine on the impossibility of forced eviction
As a general rule of law, the owner has the right to evict from his residential property a person who lives there without sufficient grounds, but …
By itself, the existence of ownership does not always automatically provide the owner with the opportunity to evict (discharge from the apartment or from the house) the one who is simply registered there and lives without being the owner!
If there is “controversy” in the issue of eviction, the case is routinely resolved by the judicial authorities, and if there is disagreement between the parties with the decision of the court of first and appeal instances – by the Supreme Court of Ukraine.
One of the cases of eviction will be of interest to both owners and residents, since in it the Supreme Court of Ukraine determined a ban on eviction, securing it with the appropriate legal opinion.
Conclusion on case No. 754/613/18-c of 15.01.2020 in detail
Background! The citizen went to court, demanding that his aunt be recognized as a person who had lost the right to use housing (forced eviction from the apartment).
He substantiated his claim by the fact that he is the owner of the home, which he received under a donation agreement. Aunt is registered there and lives, does not want to move out, which creates obstacles for him in the use of real estate.
“The court of first instance refused to evict the dwelling! He motivated the decision by the fact that the defendant has been living in an apartment for a long time and she has no other housing! The Court of Appeal ruled to “evict”! The Supreme Court of Ukraine took the side of the court of first instance ”.
The appeal court made on the basis that the termination of ownership of the previous owner and its acquisition by the new owner terminates the circumstance that serves as the basis for establishing the easement with the defendant, since the plaintiff objects to the use of his home.
The Supreme Court reasoned its decision as follows:
- The resolution of such disputes should be carried out by the courts in each specific case with the clarification of the answers to the questions:
- Is an interference with a person’s right to respect for housing lawful and necessary in a democratic society?
- Does it respond to a pressing social need and is proportionate to the legitimate aim pursued?
- A long time of residence in a dwelling in the absence of a person’s other place to live is a sufficient reason for this dwelling to be considered a person’s dwelling in the understanding of the provisions of Art. 8 “Convention on the Protection of Human Rights …”.
- The plaintiff, accepting the gift, even before the registration of ownership of the real estate, knew about the encumbrance of the apartment in the form of the right to use a family member of the former owner. That is, he could foresee the consequences of this factor, therefore, in this situation he can only accept the gift-apartment in the form it is – together with the aunt-dwelling.
It should be noted that the woman living in the apartment could have been on the street “with the light hand” of the Court of Appeal, if not for the Supreme Court of Ukraine. She was lucky, but in such cases there is no need to rely on chance, here she immediately needs the help (consultation) of a lawyer who practices the resolution of complex housing disputes.
