The Executor Must Obtain a Permit from the Guardianship Authority for the Forced Sale of Housing to Which Children Are Entitled

The complainant asked to recognize as unlawful the actions of the state executor to transfer her residential real estate to auction in executive proceedings. The court of first instance upheld the claim in part. The court of appeal dismissed the claim.

The Civil Cassation Court within the Supreme Court referred the case to the Grand Chamber of the Supreme Court to resolve an exclusive legal issue concerning the need for a state (private) executor to obtain a permit from the tutorship and guardianship authority for the forced sale of residential real estate to which children were entitled.

The SC Grand Chamber established that in accordance with the Procedure for the Sale of Seized Property (approved by the Order of the Ministry of Justice of Ukraine of September 29, 2016, No. 2831/5) in case of transfer for sale of real estate over which children have the right of ownership (or the right to use) the prior permit of the tutorship and guardianship authorities granted by law is required. If such permit is not granted, the executor continues to enforce the judgment at the expense of the debtor’s other property, and in the absence of such property, returns the writ of execution to the debt collector.

The requirement for the state executor to obtain permit from the tutorship and guardianship authorities for the sale of property is established in order to protect the rights of a minor child against possible violations.

The SC Grand Chamber came to the conclusion that for court decisions that involved the collection of a debt (including solidary) from a debtor (his guarantor) for a certain amount of obligations, it was mandatory for the state executor to obtain permit from the tutorship and guardianship authorities due to the very fact of the existence of a minor child's right of ownership or the right of use in respect of immovable property, which is sold in the framework of executive proceedings.

The tutorship and guardianship authorities, within the limits of their powers, ensure the protection of the relevant rights of minor children by deciding whether to grant such permit or to refuse to grant such permit to the state executor; so does the court as well if the party to the executive proceedings refers to it concerning the actions of the state executor and/or the tutorship and guardianship agency.

This also applies to the actions of private executors.

However, it was in this particular case that the Grand Chamber of the Supreme Court disagreed with the complainant’s arguments, as it concluded that her grandchildren’s housing rights over her real estate did not arise due to the complainant’s bad faith in registering the residence of her grandchildren precisely for the purpose of impeding executive proceedings.

Resolution of the Grand Chamber of the Supreme Court in case No. 755/12052/19 (proceedings No. 14-113цс21) – https://reyestr.court.gov.ua/Review/101584602.

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