The proper defendant in a claim for the removal of obstacles to the use and disposal of a land plot by demolishing an unauthorized construction is the person who causes such obstacles (the latest acquirer) – SC GC

Since a claim for the demolition of property that the landowner considers to be unauthorized construction is a type of negative (negatory) action, the obligation to restore the land plot to a condition suitable for use, including by demolishing houses, buildings, and structures, is imposed on the person who creates such obstacles at the time the landowner files the claim in court.

Therefore, the defendant in a claim for the removal of obstacles to the use and disposal of a land plot by demolishing an unauthorized construction should not be the developer, but the latest acquirer of that object.

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

In this case, the dispute arose in connection with the construction of unauthorized structures on a municipally owned land plot, within which the prosecutor filed, inter alia, a claim seeking the removal of obstacles to the use of the land plot by demolishing the unauthorized constructions.  

The courts of previous instances satisfied the claim.

Following the review of the cassation appeal, the Grand Chamber of the Supreme Court noted that, pursuant to Part 1 of Article 376 of the Civil Code of Ukraine, if a real estate object is being built or has been built on a land plot that was not allocated for that purpose, this alone constitutes an independent and sufficient ground for the court to classify it as unauthorized construction.

The Grand Chamber also reiterated that the registration of ownership rights to unauthorized construction in favor of the person who carried out such construction does not change the legal status of that construction as unauthorized for the purpose of applying, in particular, the provisions of Part 4 of this Article (regarding the demolition of unauthorized construction).

In view of the above, in disputes concerning the demolition of unauthorized construction where ownership of such unlawfully built real estate has been registered to a certain person without compliance with the procedure established by Article 376 of the Civil Code of Ukraine, the appropriate remedy for protecting the rights of the landowner on whose plot the unauthorized construction was carried out is a claim for demolition of the unauthorized construction in accordance with Part 4 of Article 376 of the Civil Code of Ukraine.

Moreover, given the negatory nature of a landowner’s claim, the proper defendant in a demand to remove obstacles to the use and disposal of a land plot by demolishing an unauthorized construction should be the person who actually creates such obstacles - namely, the latest acquirer of that object.

Since, in this case, the prosecutor brought the claim for the removal of obstacles to the use of the land plot by demolishing the unauthorized construction against the developer rather than against the latest acquirers of the unauthorized construction, the Grand Chamber of the Supreme Court concluded that this claim must be dismissed due to it being filed against an improper defendant.

Resolution of the Grand Chamber of the Supreme Court dated December 17, 2025, in case No. 908/2388/21 – https://reyestr.court.gov.ua/Review/133983611.

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.