Disputes regarding the recognition of property rights and the cancellation of state registration of property rights are among the most popular in the walls of courtrooms. Despite the significant increase in court fees for litigation rates in recent years, when it comes to property protection against unlawful encroachments, there is practically no hesitation in applying for a lawyer.
Having generalized legal issues with which citizens and legal entities apply for legal assistance on problematic issues of property rights to real estate, two strands can be distinguished – the commission of actions to prevent violation of the right of ownership and judicial protection or recognition of title to real estate.
By so doing, the preventive part of the legal protection, that is, the prevention of more serious litigation, can include such issues as:
confirmation of property rights and introduction of information to the state register of real rights to real estate;
holding in strict conformity with the legislation of state registration of the investor’s right in the new building after acceptance into operation;
legalization of unauthorized or reconstructed objects;
legalization of the transactions that took place, but due to formal reasons, can not be carried out by the registrar in the state register;
conclusion of agreements on the division of the common property of the spouses after the dissolution of the marriage;
conclusion of agreements between co-owners on the procedure for joint use of an apartment or premises;
recognition of property rights by prescription, that is, in the case when there are no title documents, and the person more than 10 years old owns the real estate;
recognition of ownership of inherited immovable property in connection with a notarial refusal on the basis of including the absence of the original legal documents for immovable property.
Fundamental and fundamental norms are that nobody can be deprived of property rights or limited in its implementation, except in cases established by the Constitution and laws. The owner owns, uses, disposes of his property at his own discretion and can perform any actions that do not contradict the law in respect of his property, however, in the exercise of his rights and performance of duties the owner can not prejudice the rights and freedoms of other persons.
In typical situations, changing ownership in the alienation of real estate, on the basis of transactions certified by private or state notaries, the assistance of a lawyer is necessary only in the presence of certain complications. Thus, sometimes the requests of citizens are accompanied by an approval procedure with the Ministry of Culture of Ukraine or the Office of the Cultural Heritage in case of alienation of real estate located in a building that has been granted the status of a national or local monument. Or, in the case of a minor registration in a sold apartment, there is a need to obtain a child care permit.
First of all, from 2013, in the case of realization of the alienation of immovable property, it should be in the register of property rights, so to speak, to undergo a primary registration. Given the novels of civil law that the property right arises from the moment of its state registration and clarification by the Ministry of Justice, if interpreted literally, the ownership right does arise from the moment of state registration. However, such actions are more likely to be the official state recognition of your property rights, but not its occurrence. In any case, we recommend conducting a primary registration of all real estate in order to avoid possible violations of interests by third parties.
In the initial registration, one must understand the difference between the type and type of property, so the kind of property may be immobile or mobile, and type of grocery store or office center. A sensible definition and indication in the technical passport and in the state register of real property rights of the correct type of property may, for example, affect the particularities of land allocation, obtaining documents of permissive character and taxation of an entity.
We advise you to use the help of a real estate lawyer in the situation of registration of a person’s right of ownership after the completion of the construction of an investment object. Of course, the most important conditions for a concluded investment agreement, which may be in the form of a contract of sale of property rights, an investment agreement, purchase and sale of securities, payment of share contributions and participation in a construction co-operative, a preliminary contract. A state registration of investor’s property rights can be made by any state registrar on the principle of territoriality within the administrative unit of the city of Kyiv and regions. Regardless of the type of scheme for raising funds by the investor, the key documents for the legal registration will be – a contract with the developer, a declaration (acceptance certificate), a technical passport, a certificate on full payment of funds, a decision on assigning a postal address. Separate documents confirming the acceptance of the building in operation and the assignment of the postal address, can be entered in the register, as system files on the initiative of the developer, which simplifies the procedure for registration on a separate object.
Separate cases of construction or reconstruction of buildings without appropriate permits, that is, self-imposed. The legalization of such objects may be carried out in court. The criteria for the recognition of self-constructed real estate in court are:
– allocation for this purpose in the established manner to the developer of the land plot;
-lack of objection from the owner of the land plot;
-lack of violation as a result of self-development of the rights of other persons.
Ownership of self-constructed immovable property may be recognized by a person who has carried out self-constructed construction on a land plot that was not allocated for this purpose, provided that the land plot is given to the developer by the owner and user, if such is and is not a developer. This condition is the main, but not the only one, for the recognition of the ownership of a self-constructed real estate object by such a person on the basis of a court decision. In the generalization of the practice of reviewing civil cases of arbitrary construction by courts, it is indicated that a person who has carried out self-constructed construction, a permit for the exploitation of such construction, as well as, prior to obtaining such a permit, has been obtained by the person who carried out the inspection by the relevant services of self-constructing construction with the building, sanitary, fire regulations and adherence to the principle of good-neighborliness.
The court decision on the recognition of the right of ownership to the self-constructed property, similar to the act of acceptance of immovable property for exploitation, has the force of a legal document establishing on the basis of which the state registration of the right is carried out.
In the event that there is no information on the right of ownership in the state register of real rights to real estate, then, in the presence of a legal document, it can not be argued that such property rights are not held by the owner. As you know, starting from about 1960 and before January 1, 2013, the state registration of property rights was carried out by BTI on paper carriers with the formation of archival files for real estate objects, which are still stored in the BTI archives.
In accordance with the Law of Ukraine “On the state registration of real rights to immovable property and their encumbrances”, real rights to immovable property and their encumbrances that arose before January 1, 2013 are considered valid if one of the following conditions exists:
1) the registration of such rights was conducted in accordance with the legislation in force at the time of their occurrence;
2) at the time of the emergence of such rights, legislation was in force, which did not provide for their mandatory registration.
Since such transactions took place, but due to formal reasons, they can not be carried out by the registrar in the state register, that is, the BTI can not issue a certificate of the rights of the owner, they must “legitimize” through the court.
A separate common category of cases is the division of the common property of the spouses. The most common options for sharing the property of a spouse are the division of property of the spouses during divorce and after divorce. Thus, during the dissolution of a marriage in court, the shares of the joint property of the spouses are determined in parallel, and its distribution is carried out.
In the case of the division of property that is the object of the joint vested rights of the spouses, the shares of the property of the spouse and the husband are equal, unless otherwise specified by an agreement between them or a marriage contract. However, the court may deviate from the principle of equality of the spouses in circumstances that are essential, in particular, if one of them did not care about the material provision of the family, refrained from participating in the child’s (child’s) retention, concealing, destroying or damaging the common property spent It is to the detriment of the interests of the family. In addition, by the court’s decision, the share of the property of his wife, the husband may be increased, if with her, they live children, as well as a disabled adult son, daughter, provided that the size of the alimony they receive is not sufficient to ensure their physical and spiritual development and treatment.
Quite often there are situations where one person owns a single house or apartment. In order to avoid potential conflicts and simply in order to improve co-existence, owners can enter into a contract and determine who the premises of the house or apartment are being used for use, the use of common premises (toilet, bath, kitchen, pantry, cellar, garage, etc.). However, once failure to reach an agreement by concluding a contract, each co-owner has the right to apply to the court for other co-owners to grant him exclusive possession and use of that part of the common property in kind which corresponds to his share in the right of joint partial ownership. In the case of technical impossibility, he has the right to demand from other co-owners who possess and use common property, the corresponding material compensation.
There are cases when people, having lived practically all their lives in their home, do not even realize that this property does not belong to them, but the real owner, in fact, has long died or simply did not complete the procedure for official registration of documents for sale or donation of real estate. So, if you suddenly discovered that you are not the owner of the property actually owned by you, but use it in good faith, openly and continuously for 10 years or more (for real estate), or for 5 years or more (for movable property), there are all the legal grounds for applying to the court with the corresponding suit on the recognition of title to the statute of limitations. The prescription does not apply to cases of taking possession of someone else’s property fraudulently or in a criminal way. This is a situation in which the owner of the property does not claim his right for a long time, that is, actually abandoning this property. A person who actually, openly uses such property, bears the costs of his maintenance and repair.
Acquisition of property rights by prescription is carried out only on the basis of a court decision. Ownership of immovable property subject to state registration arises up to the due date from the moment of state registration.
One of the problems is also the recognition of the property right of the heirs to the property in connection with the lack of originals of title documents for real estate. After the successor’s attempt to arrange the right to such a legacy in a notarial manner, the latter, as a rule, refuse to issue to these objects the certificate of the right to inherit precisely as a real estate, justifying the refusal of the absence of rights-based documents on it. If there are no documents heirs should go to court and there already, in court, the issue of recognition of inheritance rights is resolved. Respondents in matters of recognition of title to inheritance on houses and manor houses for which there are no title documents in connection with their loss are successors who have inherited, as well as bodies authorized to issue title documents for real estate, or the bodies to which such powers have been transferred, and the bodies that carry out the state registration of rights to real estate. If the origin of the right to inheritance depends on the proof of certain facts, a person may apply to the court for the establishment of these facts, which, in the absence of a dispute, is considered by the rules of a separate proceeding. One of the most widespread is the requirement to recognize the right to inherit property – a garage in a cooperative. Since during the life of the test takers did not register the ownership of such real estate, and the only document that had on their hands a certificate of membership in the cooperative.
The second layer of typical issues is the direct judicial protection of the disputed, unrecognized or impaired ownership of real estate, the subjects of claims in court, as a rule, are:
disputes between co-owners on the rotation of ownership rights for a smaller share in favor of the co-owner with a greater share with the compensation of another value of this share;
claims for recognition of the transaction of the alienation of immovable property invalid;
claim claims for claiming property from someone else’s illegal possession;
claim claims for cancellation of ownership registration;
litigation on the division of joint immovable property of spouses;
civil cases on the exclusion of property from arrest;
imposition of seizure on immovable property as a material evidence within the framework of criminal proceedings;
In the suit of co-owners, the right of a person to share in common property may be terminated by a court decision, if the share is insignificant and can not be allocated in kind, for example, the shareholder’s share in the inherited by several successors in the apartment of 4 sq. M. The concept of “insignificant share” is an appraisal judge, therefore, in resolving a dispute in court, the court takes into account the ratio of the value of all property, shares of each, etc. For example, even 1/6 or 1/4 in a residential building may be more beneficial for a co-owner than 1/2 in a one-room apartment (in terms of the value of this share, or the possibility of solving the issue of property use between two separate families, etc.). The reversal of ownership of a smaller share with the use of compensation for the value of such a share is used only in exceptional cases where the co-owners did not find other exits from the situation (for example, the parties agree to allocate a share or establish a mode of sharing things). The Supreme Court of Ukraine in its decisions emphasized that the ownership of the co-owner for a share in the joint property may be terminated, but provided that such damage will not be substantial and this fact is decisive in resolving the claim. Such a condition will not allow unjustly depriving the right to the place of residence of a person with a smaller share. Consequently, the key requirements are the pre-trial settlement of compensation issues, the thing is divisive, the share is significant and can be allocated in kind, absence of other possibilities, except for the forced deprivation of the right to share the co-owner.
A significant proportion of housing disputes, which are considered by courts, constitute cases of invalidation of contracts for the alienation of immovable property, including donation contracts (primarily housing). Recall the exclusive jurisdiction of disputes from the specified category of cases, ie, claims are made at the location of the property or its main part. If the invalidity of the transaction is not directly prescribed by law, but one of the parties or another interested person denies its validity on the grounds established by law, such a transaction may be declared invalid by the court (the disputed transaction). It should be noted that the person concerned is any person with a specific property interest in the disputed contract. Such a person who appeals to a court with a claim for the invalidation of a contract must prove the concrete facts of violation of its property rights and interests. For example, the transaction concerning the disposal of joint property by one of the co-owners may be declared invalid by the court in the suit of another co-owner in the absence of the necessary co-owner in the co-owner who has committed the transaction.
A separate way of protecting their property is “vindication” – requiring a thing that is endowed with individual features, is in illegal possession and is available to the defendant. With a vindication claim to a court the right to apply not only to the owner of the property, but also to persons in whom this property was legally owned by the appropriate legal basis, that is, the title. The titular owners may be those who own property in accordance with a civil law contract, such as a lease, contract, storage, mortgage, etc. Also, such owners of property are individuals who own property on the right of economic management or operational management. A bona fide purchaser can claim property in all cases, if the property was acquired by him on an unpaid contract from a person who was not entitled to dispose of it. And only in three cases, if this property has passed to a bona fide purchaser on the basis of a reimbursement agreement, namely, if the property:
was lost by the owner or the person to whom he transferred the property to ownership;
was stolen from the owner or the person to whom he transferred the property into ownership;
left the possession of the owner or the person to whom he transferred the property to ownership, not by their will in another way.
The property that the plaintiff intends to return to himself must be determined by individual characteristics. You can not ask for a similar property to be returned to you. The thing, determined by individual features, is legally unchanged, and therefore the loss of it leads to the loss of the owner of the right to vindication claim.
Ownership of immovable property by law is subject to state registration and arises from the moment of such registration. The current legislation stipulates that the cancellation of the record of registration of property rights is possible only in case of cancellation of the decision of the state registrar about the registration of property rights. Therefore, in order to cancel the record of registration of property rights in any case, it is necessary to address a separate suit in court. Note that in addition to the abolition of an illegal court decision on the basis of which the ownership is registered, the claim must separately justify the claim to cancel the decision of the state registrar on registration of ownership.
To the judicial protection of property rights also includes the category of cases on the division of joint immovable property of the spouses. One can cite some aspects of the division of the common property of the spouses. For example, it should be noted that when dividing a land plot acquired by one of the spouses during the marriage due to its privatization it is necessary to take into account the specific time in which it was acquired by one of the spouses, since in different years the rules concerning the division of this thing several times diametrically changed.
However, this fact matters only when the “unbuilt” privatized land is divided as a separate thing, since in the case of division of a dwelling house jointly constructed by the spouses during the marriage on such a plot of land, each of the spouses passes the ownership of a part of the land in proportion to its share to a dwelling house that is allocated to such a spouse. Therefore, under these circumstances, the “part” of a land plot acquired by one of the spouses in the order of privatization will be transferred to the property of another of the spouses, together with the part of the residential building, which is divided between the spouses.
Another important point that needs attention when dividing the common property of the spouses is that, when dividing the property, account is also taken of the debts of the spouses and the relationship of obligations arising in the interests of the family. Thus, in the case of the conclusion of one of the spouses, for example, a loan agreement in the interests of the family, the spouses are joint debtors under this agreement, and therefore one of the spouses who fulfilled the obligation arising from the loan agreement has the right to present to another claim for reimbursement of part of the loan paid under the loan agreement. In this case, property acquired by spouses during marriage for funds received on a loan not paid at the time of resolution of the dispute, is still subject to separation between spouses.
The constitutional right to judicial protection against encroachments on the property of individuals and legal entities is reflected, in particular, in claims to the court for the release of property from arrest. For cases concerning claims for release of property from arrest characterized by the fact that the parties are materially in a state of dispute over the law. According to the case law, in disputes on the release of property from arrest, the grounds for seeking a court is to challenge the lawfulness of the inclusion of a specific property in an act describing the property.
Persons who believe that the property on which the arrest was committed belongs to them, and not to the debtor, apply to the court for the recognition of the right to property and release him from arrest. At the same time, another form of protection of property rights for the property being arrested is the filing of a complaint against the actions of the state executor. As a rule, lawsuits on the release of arrested property, the recognition of property rights to property arrested, the exclusion of property from an act of detention and arrest, in which a state executive service department or a private executor is mentioned as a defendant, are usually submitted to the court. However, it is necessary to indicate the defendants in the debtor’s case, the person in whose interests the property is seized, and, if necessary, the person to whom the property was transferred, if it was implemented. In those cases where the description was conducted to ensure the confiscation or collection of property in favor of the state, the relevant state tax inspectorate is taken as the defendant. It should also be borne in mind that the requirements for the release of property from arrest are subject to a general limitation period of three years. The course of this period in accordance with the requirements begins from the day the person knew or could learn about the violation of his right, that is, the arrest of his property.
One of the most common means of ensuring criminal proceedings is the seizure of property, ie the temporary deprivation of a suspect, accused of the possibility of alienating a certain property on the basis of a decision of the investigating judge or the court until the cancellation of the property seizure in accordance with the procedure established by the Criminal Procedure Code of Ukraine. According to the CCP, seizure of property may also provide for a prohibition on the person whose property is seized, another person who owns the property, dispose of such property in any way and use it.
The legal basis for the arrest of property is the decision of the investigating judge or the court. This provision is stipulated by the requirement of Art. 41 of the Constitution of Ukraine, which provides for a purely judicial procedure for deprivation and restriction of property rights. The reason for the arrest of property is also the presence of a set of reasons to believe that the property is the subject, proof of the crime, means or tools of his commission, acquired in a criminal way, is the proceeds from the crime or received from the proceeds of the crime. The seizure of property is also possible in cases where the sanction of the article of the Criminal Code, which is charged to the suspect, the accused, provides for the use of confiscation or a civil claim in a criminal proceeding.
It is important that, when applying measures to ensure criminal proceedings, an investigator judge must act in accordance with the requirements of the CPC of Ukraine and ensure the observance of the rights, freedoms and legitimate interests of individuals in accordance with the requirements of the CPC of Ukraine; conditions under which no person would be subjected to unreasonable procedural limitation. Pre-trial investigation bodies often abuses the rights and recognize real evidence of immovable property that is not probative and does not preserve traces of a crime. Investigators sometimes file a petition for property seizure in criminal proceedings, although they understand that this case has no court prospects. In such cases, attorneys apply for the cancellation of an arrest in a criminal proceeding or appeal in an appeal to an unlawful decree on the imposition of an arrest. Moreover, these actions in the interests of the client, as a rule, are committed simultaneously.
Finally, we draw attention to the fact that one should not forget that each party is obliged to prove the circumstances on which it refers as a basis for its claims and objections. Evidence is subject to circumstances that are relevant to the resolution of the case in respect of which the parties have a dispute. Therefore, it is important to enlist the support of a competent lawyer who will be able to defend your title to real estate in court, knows the fines of legislation in practice. By contacting the law firm “Bragar Group” in Kiev, you will receive qualified legal assistance, we will help you to resolve the issues related to the protection of real estate.