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12.12.2022

Land disputes: Vitaliy Urkevych, judge of the KGS of the Supreme Court, shared the current case law

During the online workshop "Priority areas of land legal doctrine and the practice of the Supreme Court in land disputes", the judge of the Cassation Commercial Court as part of the Supreme Court Vitaliy Urkevich focused on the problems of determining the jurisdiction of disputes regarding rights to land plots.

As the judge of the KGS of the Supreme Court noted, questions often arise regarding the determination of the jurisdiction of disputes related to the appeal of decisions of local self-government bodies or orders of state authorities regarding the provision of land plots.

The speaker drew attention to the legal conclusions of the Grand Chamber of the Supreme Court, set out, in particular, in the resolution of October 17, 2018 in case No. 380/624/16-ts (proceedings No. 14-301ts18) on the claim of an individual to the State Geocadastre State Administration for the recognition of illegal disposition and cancellation of the order on granting a permit for the development of the land management project and in the resolution dated May 15, 2018 in case No. 809/739/17 (proceedings No. 11-252app18) on the claim of an individual to the State Geocadastre State Administration for recognition of the illegal order.

In the resolution of March 13, 2019, in case No. 814/1971/17 (proceedings No. 11-1194app18), the Supreme Court of the Supreme Court expressed the position that the dispute based on the claim of the farm on the cancellation of the decision, record regarding the state registration of the right to lease the land plot should be considered as a dispute, which is related to the violation of the plaintiff's civil rights to the land plot by another person who has registered a similar right to the same land plot. Depending on the composition of the subject, this dispute should be resolved according to the rules of civil or commercial proceedings.

Analyzing the problematic issues of determining the jurisdiction of land disputes involving farms, Vitaly Urkevych also focused on the resolution of the Supreme Court of Ukraine dated January 16, 2019 in case No. 483/1863/17 (proceedings No. 14-515cs18). It concerned the declaration of illegality and the cancellation of orders, the invalidation of the lease agreement and the return of the land plot. According to the court's conclusion, from the moment when an individual created a farm, in the legal relationship of using the land plot, there was an actual replacement of the tenant and the duties of the land user of the land plot were transferred to the farm from the day of its state registration. Since farms are legal entities, their land disputes regarding the use of land plots granted from state or communal property are subject to the jurisdiction of commercial courts.

At the same time, if the farm is not registered at the time of the opening of the proceedings in the case regarding the dispute about the use of land plots granted from state or communal lands for farming, then the party to such disputes is the citizen to whom the land plot was granted, and the dispute is subject to consideration in the order civil proceedings. This is stated in the resolution of the VP of the Supreme Court of November 21, 2018 in case No. 272/1652/14-ts (proceedings No. 14-282ts18).

Speaking about the application of the norms of material law in disputes regarding rights to land plots, the speaker focused on the questions of propriety and effectiveness of the method of protecting such rights. Thus, in the resolution dated January 19, 2021 in case No. 916/1415/19 (proceedings No. 12-80gs20), the Supreme Court of Justice stated: if the court comes to the conclusion that the method of defense chosen by the plaintiff is not provided for by law or contract and/or is ineffective for defense the plaintiff's right has been violated, in this legal relationship, the latter's claims are not subject to satisfaction; however, if the method of protection chosen by the plaintiff is not provided for by law or contract, but is effective and does not contradict the law, and the law or contract does not determine another effective method of protection, then the violated right of the plaintiff is subject to protection in the method chosen by him.

The question of the proper and effective way of protecting rights to land plots arose in the case of the prosecutor's claim to the State Geocadastral State Administration for declaring illegal and canceling orders, invalidating lease agreements for land plots and their return (resolution dated February 11, 2020 in case No. 922/614/19 (proceedings No. 12-157gs19)). As follows from the position of the Supreme Court, the demand to recognize the orders as illegal and their cancellation is not an effective way of protection, because the satisfaction of such a demand would not lead to the restoration of ownership of the corresponding land plot. At the same time, such a demand is not inextricably linked with the demand to reclaim a plot of land from someone else's illegal possession. At the same time, the plaintiff, within the scope of consideration of the case on reclaiming a plot of land from someone else's illegal possession, has the right to refer, in particular, to the illegality of the specified orders.

During the workshop, Vitaly Urkevich described a number of other, no less important and relevant cases of the Supreme Court regarding:

  • land lease rights;
  • lifelong inherited ownership of a plot of land;
  • rights of permanent use of a land plot;
  • appeal of the permit for the development of the land management project regarding the allocation of the land plot;
  • transfer of the right to a land plot in case of acquisition of a real estate object;
  • renewal of the land lease agreement;
  • rent for the land plot;
  • fees for using a plot of land without proper legal grounds;
  • protection of other rights to land plots.

More details – in Vitaly Urkevich's presentation: https://bit.ly/3HjsPDW .

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