Demolition of Unauthorized Construction Pursuant to a Court Decision Is an Effective Way to Protect the Rights of Co-Owners of an Apartment Building - the Administrative Cassation Court within the Supreme Court

The owner of an apartment in the Comfort Town residential complex, in violation of the rights and interests of the co-owners of the apartment building, reconstructed the apartment into a shop: he made a separate entrance, cut a doorway in the facade, and set up a separate entrance unit.

Upon receiving notification of that fact, the Kyiv Department for State Architectural and Construction Control issued an order to cancel the registration of the declarations on the launch of construction work and on the readiness to operate the facility. The developer appealed this order in court.

Following a cassation review of this case, the panel of judges of the Administrative Cassation Court within the Supreme Court stated that the registration of a declaration on the launch of construction work is a one-time act that led to certain legal consequences, namely the right to carry out construction work.

And after registering ownership of the constructed real estate facility under the registered declaration on the readiness to operate the facility, the latter also exhausted its effect by the fact of execution.

Thus, the Department, by canceling the declarations that had expired and lost their validity after the completion of construction, acted unlawfully and contrary to the provisions of Article 19 of the Constitution of Ukraine.

It is also important to note that the disputed order issued by the supervisory authority did not in any way lead to the elimination of the identified violations of the legislation in the field of urban development, did not contribute to ensuring the rights of the co-owners of the building and the user of the adjacent territory, who did not give their consent to such reconstruction of the common property (as required by the provisions of Article 10 of the Law of Ukraine "On Peculiarities of Exercising Ownership in an Apartment Building").

The court drew attention to the fact that in order to design this facility (with a separate entrance, cut doorways in the facade, and a separate entrance unit), the customer had to obtain urban planning conditions and restrictions - the initial design data that is used to develop projects. And the authorized body did not provide them and the customer or designer did not receive them. The data provided in the canceled declarations on the absence of grounds for obtaining urban planning conditions and restrictions is unreliable.

According to the panel of judges, such unreliable data gives grounds to consider the facility to be unauthorized construction.

The court stated that after registering the ownership of real estate, if there were all the statutory grounds to consider the object as unauthorized construction in accordance with part 1 of Article 376 of the Civil Code of Ukraine, the Department was obliged to file a claim for demolition of the unauthorized object as prescribed by law.

Court-ordered demolition of such a facility is an effective way to protect the rights of co-owners of an apartment building.

In this case, the Supreme Court issued a special ruling ordering the Department to take immediate measures to eliminate the causes and conditions that contributed to the violations and to notify the Court no later than three months after the receipt of the special ruling.

Resolution of the Supreme Court of October 24, 2022 in case No. 640/22599/19 - https://reyestr.court.gov.ua/Review/106915064, special ruling - https://reyestr.court.gov.ua/Review/106915065.

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