Practical aspects of the activities of commissions on considering issues related to providing compensation for damaged or destroyed housing and specific issues of property rights protection in real estate were highlighted by Supreme Court Judge in the Cassation Administrative Court Serhiy Ukhanenko and Supreme Court Judge in the Cassation Civil Court Vasyl Krat within the training session ‘Ways to improve the compensation process for damaged/destroyed housing: practical aspects’.
Judge of the Cassation Administrative Court Serhiy Ukhanenko focused on practical aspects of the work of commissions on considering issues related to providing compensation for damaged or destroyed housing.
First of all, he reminded the audience of Article 2 of the Law of Ukraine ‘On compensation for damage and destruction of certain categories of real estate as a result of hostilities, terrorist acts, sabotage, caused by armed aggression of the Russian Federation against Ukraine, and the State Register of property damaged and destroyed as a result of hostilities, terrorist acts, sabotage, caused by armed aggression of the Russian Federation against Ukraine’, which defines the list of recipients of compensation for damaged/destroyed real estate objects.
The speaker focused on the rights of foreigners, referring to Article 1 of the European Convention on Human Rights, which guarantees rights and freedoms to everyone under the jurisdiction of the member states of the Council of Europe that have signed this Convention. In particular, Serhiy Ukhanenko raised the issue of possible problems that arise when denying compensation to foreigners and the need to ensure their rights.
The judge explained the procedure for forming commissions. In this aspect, he reminded the audience of the resolutions of the Cabinet of Ministers of Ukraine dated May 19, 2023, No. 516 ‘Certain issues of organizing the work of the commission on considering issues related to providing compensation for destroyed real estate objects as a result of hostilities, terrorist acts, sabotage, caused by armed aggression of the Russian Federation against Ukraine’ and dated April 21, 2023, No. 381 ‘On approval of the Procedure for providing compensation for the restoration of certain categories of real estate objects damaged as a result of hostilities, terrorist acts, sabotage, caused by armed aggression of the Russian Federation, using the eRestoration electronic public service’.
During his speech, Serhiy Ukhanenko also raised the issue of determining the proper respondent in cases of providing compensation for damaged or destroyed housing. The judge noted that, as a rule, it is the executive body, but it is necessary to consider who ultimately makes the decision – the commission or the executive body.
The next issue that the speaker addressed was the powers of the commission and the motivation of decisions. Special attention was paid to the need for proper motivation of administrative acts to ensure their correct understanding and the right to appeal. The speaker emphasized that technical aspects should not prevail over legal assessment when making decisions.
In addition, Serhiy Ukhanenko outlined the grounds for refusing compensation and discussed possible ways to restore violated rights in the context of receiving compensation.
Supreme Court Judge in the Cassation Civil Court Vasyl Krat highlighted problematic issues regarding the protection of property rights in the context of judicial practice.
When discussing the proper way to protect property rights in case of inability to confirm the registration of property rights before January 1, 2013 (by action or separate proceedings), the speaker noted that the property owner can file a lawsuit to recognize his property right if this right is disputed or not recognized by another person, as well as in case of loss of the document certifying his property right.
If the property right was registered before January 1, 2013, then essentially there is a situation where there is no ‘absent’ person who should be responsible for the lawsuit, and the claim to recognize the property right cannot be applied. In this regard, the judge drew attention to the decision of the Cassation Civil Court of the Supreme Court dated September 13, 2023, in case No. 295/7291/20, in which, in a similar situation, the Court noted that there may be cases when there is an ‘absent’ person who should be responsible for the lawsuit, that is, be the defendant (for example, the termination of a legal entity due to liquidation). The Cassation Court emphasized that when there is an ‘absent’ person who should be responsible for the lawsuit, that is, be the defendant, the person (mortgagor) may apply for the establishment of the fact of termination of the mortgage, cancellation of the entry prohibiting the alienation of real estate and the entry of the mortgage in accordance with paragraph 3 of part 4 of Article 277 of the Civil Code of Ukraine, which is to be applied by analogy.
When considering the issue of acquiring property rights by acquisitive prescription, Vasyl Krat noted that the interpretation of Article 344 of the Civil Code of Ukraine indicates that to acquire property rights to other people’s things by acquisitive prescription, the following conditions are necessary: the thing that came into the possession of a person is objectively someone else’s; the possessor subjectively considers the property his own; the property owner must be acting in good faith; possession was carried out throughout the entire prescriptive period openly; possession of the property continued continuously. In the context of this issue, the judge cited, as an example, the decision of the Supreme Court of Ukraine dated May 20, 2015, in case No. 3-87gs15, the decisions of the Higher Specialized Court of Ukraine for Civil and Criminal Cases dated May 14, 2019, in case No. 910/17274/17 and May 15, 2019, in case No. 729/608/17.
The speaker also thoroughly examined issues related to the proper way to protect the rights of heirs. Among other things, he drew attention to the decision of the Supreme Court of Ukraine dated December 11, 2013, in case No. 6-121cs13, which concluded that the right to privatize an apartment belonging to the state housing stock belongs to persons who permanently reside in this apartment. To obtain the right to ownership of housing, a person must apply to the relevant privatization authority with a properly executed application, which is to be considered by the specified authority within the period prescribed by the current legislation.
If a citizen who expressed a desire to privatize the occupied apartment dies before the competent authority makes a decision on privatization, but after the expiration of the deadline specified in part 3 of Article 8 of the Law of Ukraine ‘On privatization of state housing stock’, the right to demand recognition of the right to ownership of such an apartment passes to his heirs by inheritance. The event was organized by the Norwegian Refugee Council (NRC).