Supreme Court of Ukraine on the recovery of unreasonably acquired property

The risks of investing in construction in Ukraine are obvious, nevertheless, they still continue to invest in this industry, because the demand for housing in our country remains steadily high. When investing, the contribution “grows” along with the construction, the closer the date of its commissioning, the more expensive it becomes.

At the same time, the risk of investing and not receiving anything, or “knocking out” through the courts, remains stably high, even if the parties were provided with legal services for drafting contracts! The legal conclusion of the Supreme Court of Ukraine dated 25.03.2020 in case No. 537/4259/15-c will be useful to investors, since it answers the question of how to get money back from a developer who has not fulfilled his obligations.

Brief overview of the proceedings

The investor and the contractor entered into an agreement for a share participation in the construction of a residential building. We agreed that the investor contributes money every month, and the contractor, within the time frame established by the agreement after the completion of construction, will provide the investor with documentation for registering the ownership of the apartment. But, something went wrong …

The investor appealed to the court with a demand to recognize the contract as not concluded due to the absence of essential conditions in it and to recover the money invested by him from the developer as unjustifiably acquired.

The case was reviewed several times!

“The first time the court of first instance refused to consider the dispute, the second time the claim was satisfied, appeal court agreed with this. The agreement was declared invalid due to the absence of the essential conditions of the contract agreement in it, and the plaintiff’s claims were legitimate on the grounds of Art. 1212 CCU”.

Ukrainian Supreme Court sent the case for review

The courts were told about the incorrect application of the norms of the legislation, namely, that in this situation the application of only Art. 1212 CCU is not fully justified!

•  Justice should proceed from the fact that the current agreement is a sufficient and appropriate legislative basis for the acquisition of property (receipt of funds).
•  In this case, the legal relationship of the parties is governed by the rules of obligation, which apply to certain types of contracts, and not just Article 1212 of the Civil Code.

It follows from this that in the event of a dispute concerning the acquisition of property (its preservation without sufficient legal grounds), the contractual nature of the relationship gives rise to the impossibility of applying the provisions of Art. 1212 GKU, including regarding the obligation to return the property.

According to Part 4 of Art. 653 of the Civil Code of Ukraine, the participants in the transaction are prohibited from demanding the return of what they have performed under the obligation before the contract is amended or terminated, unless otherwise provided by law or contract, and paragraph 3 of part 3 of Art. 1212 of the Civil Code of Ukraine determines that the provisions of this chapter also apply to claims for the return of an obligation fulfilled by one of the parties.