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Awarding compensation to one co-owner for the value of their share in common property that constitutes housing cannot occur if enforcement of such a decision by the other co-owners would result in the recovery being enforced against that same housing, which is their only home.
The Grand Chamber of the Supreme Court reached this conclusion in a case concerning the allocation of a share in an apartment through the payment of compensation.
According to the circumstances of the case, the plaintiff owns 3/5 of the share in the ownership rights to the apartment, while the defendants each own 1/5. The defendants are third parties to her, making joint ownership and use of the apartment impossible. Her proposals to buy out their shares have been ignored by the defendants.
The plaintiff agrees to terminate her ownership rights to her share in the apartment in exchange for monetary compensation equal to the value of that property.
The court of first instance dismissed the claim because the defendants lacked the financial capacity to pay the compensation amount. In contrast, the appellate court granted the claim, reasoning that the defendant’s solvency (or willingness) does not matter when resolving a dispute over the recovery of compensation for a share in the ownership of an indivisible thing.
When reviewing the courts’ decisions, the Grand Chamber of the Supreme Court concluded that in disputes where one co-owner demands termination of their right to a share in common property that constitutes housing, through receiving monetary compensation from the other co-owners for the value of their share (which cannot be physically allocated), the court must take into account the defendants’ property status — specifically, their ability to pay compensation for the value of the share whose rights are being terminated and transferred to the defendant(s) — and whether enforcement of the relevant compensation judgment would lead to the recovery being enforced against the share transferred to the other co-owners by the court decision.
When resolving disputes concerning the termination of rights to a share in immovable property, especially where it serves as the only housing, the specific nature of such property must be considered. The court must assess the balance of interests of the parties, taking into account the solvency of the person obligated to pay compensation for the other co-owner’s share, as well as the criteria for interference with a person’s right to housing under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
In this case, the disputed apartment is the defendants’ only place of residence. The plaintiff provided no evidence that the defendants have any other housing or genuine financial capacity to pay compensation in the amount of UAH 1,321,605 without enforcement being levied against this apartment.
The legitimate aim of protecting the plaintiff’s property interests as the owner of the larger share cannot justify such an extreme interference with the defendants’ right to housing as the complete loss of their only dwelling, especially since they have no realistic ability to pay the compensation. The plaintiff has alternative ways to protect her rights, in particular by selling her share while respecting the defendants’ pre-emptive right in accordance with Article 362 of the Civil Code of Ukraine, whereas the defendants have no such alternative.
Therefore, the forced recovery of compensation in an amount that exceeds the defendants’ financial capabilities and will inevitably lead to the loss of their only home violates the principle of proportionality and imposes an excessive burden on the defendants.
Resolution of the Grand Chamber of the Supreme Court dated 10 December 2025, in case No. 466/2128/23 – https://reyestr.court.gov.ua/Review/132746737.
This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.
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