In the division of property, each co-owner receives property in kind and joint ownership is terminated, whereas in the case of allocation of a share from joint ownership - only for the one to whom the share is allocated in kind - SC GC

If there are only two co-owners of the property, it is divided between them in accordance with Article 367 of the Civil Code of Ukraine. This involves determining the size of the separate parts of the former common property for both parties, as well as the specific real estate objects formed as a result of the division and belonging to the plaintiff and defendant.

If there are three or more co-owners, the court, applying the provisions of Article 364 of the Civil Code of Ukraine, must allocate and specify in its decision the individually designated property of the plaintiff, while leaving the remaining property in the joint ownership of the other defendants.

These conclusions were reached by the Grand Chamber of the Supreme Court in a case involving a claim for the allocation of a share of a house in kind and the establishment of a procedure for the use of a land plot.

The plaintiffs stated that jointly as spouses they owned 452/600 shares of the residential building, the other share (148/600) belonged to the plaintiff's brother, who had not lived in the house for more than 20 years, did not use the property, obstructed the privatisation of the land and did not agree to a voluntary division.

The courts of the previous instances satisfied the claim, divided the household property between the plaintiff and the defendant, and determined the procedure for using the land plot.

In its cassation appeal, the defendant drew attention to the fact that the plaintiff had requested the allocation of their share of the right of joint shared ownership of the household in kind, in accordance with Article 364 of the Civil Code of Ukraine. However, the courts had erroneously granted the claim for the division of the residential building in kind between the parties, in accordance with Article 367 of the Civil Code of Ukraine.

Based on the outcome of the case, the Grand Chamber of the Supreme Court observed that the division of joint property (Article 367 of the Civil Code of Ukraine) differs from the allocation of a co-owner's share or the termination of their right to a share in joint property (Article 364 of the Civil Code of Ukraine), in that, upon division of the property, each co-owner is allocated property in kind, thereby terminating their right of joint ownership. In the event of a share being allocated from the joint property, the right of joint ownership is terminated only for the participant to whom the share is allocated, while the regime of joint ownership of the remaining property is preserved for the other co-owners.

If there are only two co-owners of the property, it is divided between them. This is because, when determining one co-owner's share, the other's share is also determined and cannot be changed in the future. In such cases, the court should specify the size of the separate portions of the former joint property belonging to each party, and identify the separate real estate resulting from its division that belongs to the plaintiff and defendant.

When determining the in-kind share of one of three or more co-owners of property in court (i.e. allocation of a share), the size of the shares of the other co-owners (i.e. the defendants) is not determined. The court, applying the provisions of Article 364 of the Civil Code of Ukraine, must allocate and specify in its decision the individually designated property of the plaintiff, while leaving the remaining property in the joint ownership of the other defendants.

In this case, the courts divided the homeownership and terminated the joint partial ownership of the house. However, they did not establish the size and grounds for the acquisition of the land plot by the co-owners (including former ones), or the right to use it, which is subject to division together with the house.

In view of the foregoing, the Grand Chamber of the Supreme Court concluded that the court decisions of the previous instances should be cancelled and the case should be remanded to the court of first instance for a new trial.

The link to the resolution of the Grand Chamber of the Supreme Court dated 23 April 2025 in case No. 357/3145/20 will be added immediately after its publication in the USRCD.