Opinion of the Grand Chamber of the Supreme Court as for Juridical Status of Dispute on the Cancellation of State Registration of Proprietary Right

While determining the juridical status of the dispute with state registrar or as for appealing actions of the state registrar, the criteria of separation of administrative and civil (commercial) jurisdictions are represented by the contents of disputable legal relations and the subject of appeal. In case of appealing the actions of the state registrar as for the refusal to the plaintiff as a claimant to grant state registration of rights pursuant to Article 24 of the Law of Ukraine No. 1952-IV of 1 July 2004 “On State Registration of Corporeal Rights to Real Estate and Their Encumbrances”, and this dispute does not concern third persons’ corporeal rights or restrictions to real estate, it is public and legal one and shall be considered in administrative judicial procedure.

The plaintiff noted that he had proprietary right to an apartment, however, he could not proceed with state registration of his rights, since in the State Register of Corporeal Rights to Real Estate and the Register of Proprietary Rights to Real Estate the state registrar had made record about the registration of proprietary right to real estate with different technical characteristics; he asked to exclude to noted record from the registers.

He applied to state registrar with claim on proceeding with registration of an object of real estate after opening a chapter as for this object in the State Register of Rights pursuant to Parts 2-3 of Article 13 of the Law No. 1952-IV and after forming a registration case and assigning a registration number of real estate object. This chapter of the State Register of Rights is composed of four parts containing data about: 1) the real estate; 2) proprietary right and the subject(s) of this right; 3) other corporeal rights and the subject(s) of these rights; 4) encumbrances of rights to real estate and the subject(s) of these encumbrances.

Part 1 of Article 24 of the Law of Ukraine No. 1952-IV provides an exhaustive list of grounds for refusal to grant state registration of rights.

In this case, the grounds for refusal are noted in Item 5 of Part 1 of Article 24 of the Law No 1952-IV (existing contradictions between the stated and registered corporeal rights to real estate and their encumbrances); at the same time, it is also remarked that technical characteristics of the apartment recorded into the State Register and those noted in the certificate provided by the plaintiff are different.

This fact testifies the existence of dispute between the claimant, who applied with the claim on the registration of rights to real estate, and the state registrar, who carries out such actions.

Legal relations appeared between the plaintiff and the state registrar as for the exclusion of records about registration of the proprietary right to the apartment from the State Register of Corporeal Rights to Real Estate and the Register of Proprietary Rights to Real Estate only because of the fact that technical characteristics of the apartment owned by him are recorded incorrectly. The claim does not include other grounds for the record cancellation. The dispute between spouses as for the proprietary right to the apartment was solved by court; the plaintiff applied to the registration service to fulfill the judgment.

The SC Grand Chamber considers that public and legal relations appear, if state registrar acts as an authority, performs actions regarding the plaintiff, which the latter considers to be unlawful and in violation of his rights. I.e. while determining the juridical status of the dispute with state registrar or as for appealing actions of the state registrar, the criteria of such separation is represented by the subject of appeal. If an individual appeals actions of the state registrar regarding the consideration of his claim in the context of Article 24 of the Law No. 1952-IV and the dispute does not concern third persons’ corporeal rights or restrictions to real estate, it is public and legal one and shall be considered in administrative judicial procedure.

If plaintiff appeals actions of the state registrar, performed under the claim of third person, i.e. the actions concern legal relations, which appeared or appear between the state registrar and another individual, who is not the plaintiff, dispute on the right of the plaintiff and the other individual to real estate is seen. This dispute shall be considered in civil or commercial judicial procedure, depending on the subjective composition of parties; inherently, this is a private law dispute.

Follow the link http://www.reyestr.court.gov.ua/Review/78376852 to see the full text of the Resolution of the Grand Chamber of 28 November 2018 in the case No. 490/5986/17 (proceedings No. 14-331цс18).