The owner of a land plot on which a temporary structure that is not immovable property has been illegally constructed may file a claim for demolition of such structure in accordance with Art. 391 of the Civil Code of Ukraine - SC GC

If non-residential premises are temporary structures that do not belong to immovable property, built on a communal land plot used by the owner of these premises without the grounds established by law, an effective way to protect the violated right of the land plot owner is a negative claim (Article 391 of the Civil Code of Ukraine), in particular by cancelling the state registration of private property rights to such premises and the obligation to vacate the illegally occupied land plots by demolishing the non-residential premises.

The court decision to demolish the said non-residential premises should be enforceable not only on a voluntary basis, but also by the enforcement officer taking enforcement measures (without the defendant's participation, but at his expense) in case of the defendant's failure to comply with the decision on a voluntary basis and/or obstruction of its execution.

This legal conclusion was made by the Grand Chamber of the Supreme Court.

In the case at hand, in 2008, based on a court decision, the ownership of non-residential premises located on a communal land plot was registered in favour of the sole proprietorship. In 2009, the property was alienated twice under sale and purchase agreements and was owned by a private enterprise at the time of the case.

Subsequently, the court of appeal cancelled the court decision on the basis of which the ownership was registered in favour of the sole proprietorship. The city council believed that the private enterprise was using the municipally owned land plots unauthorisedly, and therefore, pursuant to Article 376 of the Civil Code of Ukraine, such land plots should be returned to the plaintiff by demolishing the constructed premises.

In upholding the claim, the local court found that the private enterprise was using the plaintiff's disputed land plots without the grounds established by law. The plots in question are actually used for trade pavilions, which are not immovable property, and therefore the appropriate remedy in this dispute is a negative claim (Article 391 of the Civil Code of Ukraine). The court of appeal dismissed the claim due to the plaintiff's failure to comply with the limitation period.

Following the consideration of the case, the Grand Chamber of the Supreme Court agreed with the conclusions of the local court that non-residential premises are temporary structures that do not belong to immovable property.

Given that the state registration of private property rights to non-residential premises as immovable property was made in error and the said property is not immovable, such state registration is subject to cancellation with the closure of the relevant section of the State Register of Real Property Rights.

Pursuant to Article 391 of the Civil Code of Ukraine, a property owner has the right to demand removal of obstacles to the exercise of his/her right to use and dispose of his/her property.

In view of the above, the Grand Chamber of the Supreme Court agreed with the conclusions of the local court that the private enterprise uses the plaintiff's land plots without the grounds established by law, therefore, Article 391 of the Civil Code of Ukraine is applicable to the disputed legal relations.

The plaintiff's claim to oblige the private enterprise to vacate the illegally occupied land plots by demolishing the non-residential premises is not inextricably linked to its identity and does not prevent the enforcement of this decision without the participation of the private enterprise (but at its expense) by the enforcement officer in case of the debtor's failure to comply with the decision on a voluntary basis and/or obstruction of its execution.

The Grand Chamber of the Supreme Court believes that the plaintiff's claims against the defendants for cancellation of state registration of private property rights to non-residential premises and obligation of a private enterprise to vacate unauthorisedly occupied land plots are a negative claim, therefore, it rejects the argument that the limitation period applies to these claims.

Also, the Grand Chamber of the Supreme Court noted that since the dispute in this case is not related to real estate, the provisions of Article 376 of the Civil Code of Ukraine do not apply to the disputed legal relations.

Resolution of the Grand Chamber of the Supreme Court of 18 September 2024 in case No. 914/1785/22 (proceedings No. 12-31гс24) - https://reyestr.court.gov.ua/Review/122511425.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.