If land owned by an individual is partially overlapped by a railway right-of-way, the proper way to protect the right is to reclaim the part of the land that is overlapped - SC GC

If a land plot owned by JSC Ukrzaliznytsia is partially overlapped by a land plot owned by an individual, the proper way to protect the right of JSC Ukrzaliznytsia is to reclaim only that part of the land plot that overlaps with the railway right-of-way.

Invalidation of the decision of the local self-government body that transferred the land plot to the ownership of an individual and the state act of ownership of the land plot will not lead to the restoration of the plaintiff's violated rights and interests. 

These conclusions were made by the Grand Chamber of the Supreme Court.

Under the circumstances of the case, JSC Ukrzaliznytsia, in the course of work aimed at executing title documents for the right to permanent use of the railway right-of-way, found out that the right-of-way was overlapped by a part of the land plot owned by the defendant.

In this regard, the plaintiff filed a claim to invalidate the decision of the city council to transfer the land plot to the defendant's ownership and the state certificate of ownership issued on its basis.

The court of appeal dismissed the claim on the grounds that the plaintiff had chosen an improper way to protect its rights, noting that the plaintiff could apply to the court to reclaim the property.

The Grand Chamber of the Supreme Court noted that reclamation as an appropriate remedy in this case cannot be applied to the entire land plot. Such a claim can only be considered in respect of the part of the land plot that overlaps with the railway right-of-way.

JSC Ukrzaliznytsia has to prove which land plot and within what limits overlaps the railway right-of-way. Therefore, in order to resolve such disputes, the land plot (the grounds for which there are grounds for reclamation - i.e., such land plot overlaps the railway right-of-way) must be identified, in particular, by determining the coordinates of the turning points of the boundaries and data on the linkage of the turning points of the boundaries to the points of the state geodetic network (Article 15 of the Law of Ukraine ‘On the State Land Cadastre’).

The Grand Chamber of the Supreme Court points out that a remedy that entails interference with the right to property over which there is no dispute cannot be considered proper (lawful). In other words, invalidation of the decision of the local self-government body and return of the parties to the previous state will result in the defendant being deprived of ownership not only of the part of the land plot that overlaps with the land plot of JSC Ukrzaliznytsia, but also of the part of the land plot that is not in dispute and the legality of granting it to the defendant is not in question. Such interference cannot be recognised as lawful.

Therefore, given the circumstances established by the courts, the appropriate way to protect the violated right is a vindication claim, namely a claim for reclamation of the part of the overlapping land plot.

As a result, the claim of JSC Ukrzaliznytsia to invalidate the decision of the council and the state act of ownership of the land plot should be dismissed due to the improperness of the chosen remedy, as the court of appeal correctly concluded.

A link to the resolution of the Grand Chamber of the Supreme Court of 22 January 2025 in case No. 446/478/19 (proceedings No. 14-90цс23) will be added immediately after its publication in the USRCD.