The SC Commercial Cassation Court Upheld the Judgment of the Court of Appeal to Demolish an Unauthorized Structure in Odessa

The Commercial Court of Odessa Region rejected the claim of the deputy prosecutor of the Primorskyi District of Odessa in the interests of the state on behalf of the Odessa City Council, the Executive Committee of the Odessa City Council against PJSC Tourist and Production Company "Chorne More" on the obligation to demolish a parking lot.

The South-Western Commercial Court of Appeal overturned the judgment of the court of first instance and issued a new decision which satisfied the claim of the deputy prosecutor and ordered PJSC Tourist and Production Company "Chorne More" to demolish the structure at its own expense.

This decision is motivated by the fact that in accordance with parts 1, 3 of Art. 375 of the Civil Code of Ukraine, paragraph "ґ" of part 1 of Art. 95, parts 1, 2 of Art. 116, part 1 of Art. 123 of the Land Code of Ukraine, part 1 of Art. 25 of the Law of Ukraine "On Land Lease", a mandatory document granting the right to carry out construction on a leased land plot from communal property land is a building permit for the site, issued by the decision of the local self-government body to allocate the land plot for construction. However, PJSC Tourist and Production Company "Chorne More" did not have a document that would entitle it to build a parking lot on the leased land.

Leaving the judgment of the court of appeal unchanged, the Commercial Cassation Court within the Supreme Court proceeded from the fact that, by virtue of the provisions of Articles 375, 376 of the Civil Code of Ukraine, Art. 25 of the Law of Ukraine "On Land Lease", Art. 5 of the Law of Ukraine "On Fundamentals of Urban Development", Art. 9 of the Law of Ukraine "On Architectural Activity", Articles 34, 39 of the Law of Ukraine "On Regulation of Urban Development", Articles 5, 32 of the Law of Ukraine "On Protection of Cultural Heritage" and the circumstances established by the court of appeal, the defendant did not have the permission of the owner of the land plot and the central executive body for the protection of cultural heritage for carrying out works within the Central Historical Area of ​​Odessa, and the disputed parking lot is an unauthorized construction on a land plot not allocated for such purposes. The premises are therefore subject to demolition by the defendant at his own expense.

The text of the resolution of the Commercial Cassation Court within the Supreme Court of November 16, 2021, in case No. 916/3200/17 (916/2791/13) can be found at the following link - https://reyestr.court.gov.ua/Review/101360709.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court- lpd.court.gov.ua/login.