Eviction of a mother with children from disputed housing without the consent of the owner of alternative housing for their residence is unlawful – SC CivCC

A court must verify the existence of the owner’s consent for the use of alternative residential premises when evicting a person without providing other housing, if the right of residence is not established by law.

These conclusions were reached by the Supreme Court, sitting as a panel of judges of the Third Judicial Chamber of the Civil Cassation Court.

In the case under review, the claimant sought to evict the defendant, her two minor children and her mother from the residential house without providing alternative housing. He justified his claim on the grounds that, under a deed of gift, he is the new owner of the disputed residential house, while the defendants are not members of his family and are obstructing his use of the property. In turn, the defendant filed a counterclaim, seeking recognition of her and her children’s right to use the disputed housing, as she and her children had been registered and had lived there since birth as family members of the former owner, and this was their only home.

The court of first instance refused to satisfy both the original and the counterclaims. The appellate court overturned the decision of the district court and delivered a new judgment, allowing the original claim and dismissing the counterclaim. It concluded that the eviction of the defendants, including the two minor children, was lawful and proportionate, having regard to the fact that the defendant’s mother (also a defendant in the original claim) owned a residential house, whereas the gifted house was the claimant’s only home.

The Civil Cassation Court of the Supreme Court, by setting aside the appellate court’s ruling in the part concerning the eviction of the mother and her two children (the ruling was not appealed in the other part) and remitting the case for a fresh appellate hearing in that part, made the following legal conclusions.

Eviction from an occupied residential premises is permitted only on grounds established by law. Eviction shall be carried out voluntarily or by court order. Administrative eviction with the sanction of the prosecutor is permitted only in respect of persons who have unlawfully occupied residential premises or who reside in buildings that threaten to collapse (Part 1 of Article 109 of the Housing Code of Ukraine).

Citizens who own a house (part of a house) or a flat in private ownership shall use it for their personal residence and the residence of members of their families and have the right to dispose of this property at their discretion: to sell, donate, bequeath, lease, exchange, mortgage or enter into other transactions not prohibited by law (Part 1 of Article 150 of the Housing Code of Ukraine).

The Supreme Court noted that the lower courts had cited quite extensively the case law of the European Court of Human Rights on matters relating to the subject of this dispute, without any contradictions therein. In reality, the divergence between the decisions of the lower courts arose from their differing assessment of the justified and proportionate interference with the right of the defendant and her children to use the disputed residential house.

The concept of public interest is inextricably linked with legality in society - compliance with the requirements of the law. Therefore, the opposite also leads to a failure to meet the public interest. The law does not exclude the possibility of interference with the defendant’s right to use the disputed residential house; the existence of such interference must be determined by the specific circumstances of the case, which must be properly established.

Thus, any interference with the right to housing must be not only proportionate but, above all, lawful. Although the appellate court considered the eviction proportionate due to the existence of another large residential house owned by the defendant’s mother, it failed to take into account that the lawfulness of the relocation depends on the will of the owner of that property. The defendant is an adult, and therefore she does not have an automatic right to reside in her mother’s house solely on the basis of family ties.

In view of the above, the Civil Cassation Court of the Supreme Court found the appellate court’s conclusion that there had been no violation of the right to housing of the defendant and her children to be premature, since the possibility of the family’s relocation directly depends on the consent of the owner of the alternative housing (the children’s grandmother). In the event of the owner’s objection, the defendant and her children would effectively be left without a place of residence guaranteed by law, as the disputed house is their only home, where they have been registered and have lived since birth.

Accordingly, the appellate court did not establish circumstances that would confirm that such an eviction would not lead to a violation of the rights guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the defendant and her children.

Resolution of the Civil Cassation Court of the Supreme Court dated 28 January 2026 in case No. 450/3785/19 (proceedings No. 61-11106св22) — https://reyestr.court.gov.ua/Review/133947123.

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.