V. Symonenko
Judge of the High Specialized Court of Ukraine
for Civil and Criminal Cases
L. Kozlovska
Ph. D. in Law, Associate Professor
Scientific Adviser to
the High Specialized Court of
Ukraine for Civil and Criminal Cases
JUDICIAL PROTECTION OF RIGHTS OF THE HEIRS TO THE OBJECTS OF UNAUTHORIZED CONSTRUCTION
The article studies the basic problems of application of the rule of law in protection of the property rights of heirs to the objects of unauthorized construction. The authors came to a conclusion that it is necessary to amend the legislation in order to provide the minimal court participation in the recognition of property rights to the objects of unauthorized construction.
Key words: inheritance (2), confession of ownership, object of arbitrary building.
According to part 1 of Article 376 of the Civil Code of Ukraine (hereinafter the CC of Ukraine) an object of immovable property is considered unauthorized construction in case of any of the following conditions: the land plot is not used on designated purpose; there is no valid building permit; there is no duly approved project; there have been serious violations of provisions of building codes during the construction. According to part 2 of Article 376 of the CC of Ukraine a person who carries or has carried out unauthorized construction of immovable property does not acquire ownership rights to it. This general rule is mitigated by the fact that the court may recognize the ownership right to the object of unauthorized construction at the request of the person who has carried out such construction (part 3 of Article 376 of the CC of Ukraine). Taking into account the specificity of the national permit system for urban development and house building, developers rather actively use this right and apply to court for legalization of unauthorized construction and in a large number of cases these applications are satisfied.
The situation becomes more complicated in case of death of the developer prior to acquisition of the ownership right. The problem of legal registration of the object of immovable property arises in front of the heir due to the absence of ownership documents.
It should be noted that court satisfaction of the application for legalization of unauthorized construction gives this right to a plaintiff, but does not state its transfer in order of succession. This raises a number of questions regarding the legal nature of such applications and their reasonableness as a proper way to protect the inheritance rights.
In disputes on inheritance rights the court may recognize the right that was given to the heir but is violated, unrecognized or challenged by third parties. The very essence of inheritance as a transfer of rights and obligations of the testator to the heirs (Article 1216 of the CC of Ukraine) should exclude the emergence of “new” rights and obligations of the heir. If the heir is the first who gets the right, then it is not transferred in order of succession. However, the complexity of legal relations and peculiarities of emergence of ownership rights cause situations in which the testator may have the property rights that do not make up ownership. Inheritance as transfer of rights and obligations from the testator to the heir is, in particular, the ground for acquisition of ownership rights by the heir. There are a number of rights that by law do not belong to the testator but under certain conditions arise to the heir due to the universal nature of inheritance succession. “The heir may acquire the ownership right on the property that was not in the ownership of the testator, but would have belonged to them, if they had lived longer, including the living quarters, the land plot, which privatization was started and not finished due to the death of the latter” [1].
There are opposing views on the reasonableness of heirs’ claims on recognition of ownership rights to the objects of unrecognized construction among scholars and court practitioners. For example, some believe that the approach outlined in the Plenum Resolution of the Supreme Court of Ukraine from May 30, 2008 № 7 “On judicial practice in cases of inheritance” (hereinafter the Plenum Resolution of the SCU) [2] provides only for the recognition of the heirs’ ownership in building materials and equipment. Others argue that this is inconsistent with part 3 of Article 376 of the CC of Ukraine and the rules of the concept and content of inheritance (Articles 1216, 1218 of the CC of Ukraine).
According to the Plenum Resolution of the High Specialized Court of Ukraine for Civil and Criminal Cases of March 30, 2012 № 6 “On Practice of Application by Courts of Article 376 of the Civil Code of Ukraine (on the legal regime of unauthorized construction)” neither the person who made the construction, nor their heirs acquire the ownership right on illegally constructed houses, buildings and other structures. The heirs’ rights to the objects of unauthorized construction shall be determined by court pursuant to the provisions of Article 1218 of the CC of Ukraine and taking into account the clarifications of clause 7 of the Plenum Resolution of the SCU from May 30, 2008 № 7.
The aforementioned Article 1218 provides that the content of inheritance includes all rights and obligations of the testator as of the moment of opening of inheritance and did not terminate in consequence of their death.
An analysis of court practice on recognition of ownership of the illegally built house by inheritance shows that in majority of cases the courts do not take into consideration the clarifications of paragraphs 1, 2 of clause 7 of the Plenum Resolution of the SCU of May 30, 2008 № 7. Namely that in the event the testator carried out the unauthorized construction, the heir acquires the ownership right on the actually used building materials and equipment (part 1 of Article 376 of the CC of Ukraine). Should the court recognize the ownership of the illegally built house by the owner (user) of the land plot, the content of inheritance includes the right to reimbursement of the cost of construction (part 6 of Article 376 of the CC of Ukraine).
In our opinion, the approach outlined in the Plenum Resolution of the SCU from May 30, 2008 № 7, which provides for the recognition by the heir of the ownership of building materials and equipment etc., does not exclude the right of the heir to apply for the recognition of the ownership of the objects of unrecognized construction. This is consistent with part 3 of Article 376 of the CC of Ukraine and the rules of the concept and content of inheritance (Articles 1216, 1218 of the CC of Ukraine). However this right can be recognized only on condition that the right to the land plot was transferred to the heirs (part 3 of Article 376 of the CC of Ukraine) and there are violations as defined by part 1 and part 7 of Article 376 of the CC of Ukraine. It is also necessary to take into account the provisions of clause 9 of the Plenum Resolution of the High Specialized Court of Ukraine for Civil and Criminal Cases from March 30, 2012 № 6 regarding the fact of appeal to the relevant state authorities of the issuance of a declaration and refusal to issue the declaration or omission of the deadline set by law.
Literally, clause 7 of the Plenum Resolution of the SCU from May 30, 2008 № 7 slightly reduces the validity and content of the rules that govern the legal relations in the event of death of the developer of the object of unauthorized construction. Article 376 of the CC of Ukraine, along with the definition of unauthorized construction, provides three types of legal consequences of its implementation and determines the legal fate of the object: 1) ownership for illegally built property can be recognized by the person who made the unauthorized construction; 2) the property can be demolished at the request of the owner of the land plot; 3) the ownership of unrecognized construction can be recognized for the owner of the land plot. Reimbursement for construction and/ or demolition are carried out according to the provisions of part 4, part 6, part 7 of Article 376 of the CC of Ukraine on the principle of the prohibition of unjust enrichment.
According to the Plenum Resolution of the SCU from May 30, 2008 № 7, the recognition by the heir of the ownership of building materials and equipment etc., is an alternative to recognition of ownership right to the object of unauthorized construction by the developer in case of death of the latter. As to the other legal consequences provided for by parts 4-7 of Article 376 of the CC of Ukraine, the rights and obligations of the testator are transferred to the heirs unchanged.
The right to claim ownership of the illegally built property (part 3, part 5 of Article 376 of the CC of Ukraine) is defined as a subjective civil right, which is transferred in order of succession in accordance with Articles 1216, 1218 of the CC of Ukraine. If pursuant to the applicable law (part 3, part 5 of Article 376 of the CC of Ukraine) the testator had the right to claim for recognition of ownership of the objects of unauthorized construction, then it also belongs to the heir who accepted the inheritance. This right may also be exercised in order of succession procedure at any stage of civil procedure (Article 37 of the Code of Civil Procedure of Ukraine (hereinafter the CCP of Ukraine)) if the testator filed the claim to court, but died.
The obvious problem of definition of the legal nature of property rights to objects of unauthorized construction gives some flexibility to the judicial practice regarding recognition of heirs’ rights to such objects. Depending on the circumstances established by court the ownership rights on the actually used building materials and equipment as well as property rights on the objects of unauthorized construction may be transferred to the heirs.
For example, on February 11, 2010 a citizen T. filed the claim to Horlivka City Council, the third party being the pud (planned unit development) “Horlivka City Bureau of Technical Inventory”, for recognition of ownership by inheritance of unauthorized construction of the house extension and outbuildings. The court decision from March 23, 2010 satisfied the claims of the citizen T., referring to the provisions of Article 376 of the CC of Ukraine (Nikitovsky District Court of Horlivka, the case № 2-366/10).
The court decision on recognition of ownership of illegally constructed buildings and facilities for the heirs shall be based on evaluation of available documents and other evidence, in particular: decision of the competent authority to allocate land for development; compliance of the unauthorized construction to safety, security and design standards; declaration of readiness of the object exploitation; application for admission to object exploitation; notary refuse to issue an inheritance certificate. It shall also be established by court whether the unauthorized construction violates the rights and lawful interests of other persons and the year of construction; if the unauthorized construction is carried out in rural area it shall be established whether it is reordered in the register of the Village Council.
For example, the decision of the Rakhiv District Court of February 1, 2011 (case № 2-26/110) recognized the ownership of inherited property including the actually used building materials and equipment for the citizen P, which was cancelled by the Court of Appeal of Transcarpatian region on the basis that in addition to the plaintiff there was another heir. What is more, the court came to the erroneous conclusion that the inherited house was an unauthorized construction, despite the fact that the construction was carried out on purposefully allocated land and the house was recorded in the register of the Village Council.
In resolving disputes on recognition of ownership rights to the objects of unauthorized construction, pursuant to part 3 of Article 376 of the CC of Ukraine the court shall establish the legal status of the land on which the construction was carried out. In accordance with part 1 of Article 13 of the Constitution of Ukraine and Article 20 of the Land Code of Ukraine (hereinafter the LC of Ukraine) governmental and local authority bodies exercise their right of land ownership on behalf of the Ukrainian people, which means that only the stated authorities may decide on allocation of land plots, their transfer to private ownership and definition of purpose of land use. It should be borne in mind that the ownership right to the objects of unauthorized construction shall be given to a person only on condition that they present the documents confirming the ownership to the land or the right to use the land and the application for admission to object exploitation. The courts of first instance frequently ignore the last condition.
Provisions of Articles 376, 1216, 1218, 1219 of the CC of Ukraine require that the courts shall consider the cases initiated by the claims of the heirs of a person that carried out the unauthorized construction on the land plot, which was not allocated for that purpose, or the heirs were allocated the land plot for the already built property (part 3 of Article 376 of the CC of Ukraine), and by the claims of the heirs of a person who carried out the unauthorized construction at the land plot, of which they were the owner (user), unless it violates the rights of others (part 5 of Article 376 of the CC of Ukraine). The right of ownership by inheritance shall be refused for the unauthorized construction in case if there are no documents for land allocation.
In disputes on recognition of ownership by inheritance to the unauthorized constructions special attention should be paid to the detection of the proper defendant. Generally, in cases on recognition of ownership by inheritance to the unauthorized constructions the defendant is the relevant local council that decides on the issues of land disposal and transfer of community lands to private ownership (Articles 8-12 of the LC of Ukraine); issues of land withdrawal (redemption) and granting permission for the construction of urban planning; issues of the location and design of new constructions, and territory restoration and reconstruction (Article 12 of the Law of Ukraine “On the Planning and Development”). Local authorities, bureaus of technical inventory, territorial bodies of the Ministry of Justice of Ukraine and architectural control inspections may be involved as defendants if the testator or the heirs filed claims to these bodies, which were not satisfied.
The decision of Kovpakivskyy District Court of Sumy of November 15, 2010 refused to satisfy the claim of the citizen M. to Sumy City Council, the third party being Sumy Public Notary Office, for recognition of ownership to the objects of unauthorized construction and recognition of ownership by inheritance.
The court decision was motivated by the fact that the father of the plaintiff was allocated the land plot on December 20, 1960 and the designated purpose was to build an individual residential house. During 1960-1980 he built the residential house, the summer kitchen, the barn, the cellar, the shower, the greenhouses, the sheds, the toilet and the fence. Later he illegally built the extension to the residential house, the lobby and the garage.
As neither the father of the plaintiff took any action to legalize the unauthorized construction, nor the plaintiff, which is the heir, addressed the permanent commission on unauthorized construction and unauthorized change of functional purpose of immovable property, the court decided that the defendant did not infringe the rights of the plaintiff.
The practice of courts that satisfy the claims for recognition of ownership to the unauthorized construction as ownership to the newly built structures shall be found unreasonable. The legislation does not provide for the recognition of ownership to the newly built structures as a way of protection of rights of heirs of properties having the nature of unauthorized construction; it contradicts to Articles 331, 376 of the CC of Ukraine.
Thus, the decision of Primorsky District court of Zaporizhzhya region of March 18, 2011 satisfied the claim of the citizen Z., the third party being Zelenivska Village Council, for recognition of ownership to the illegally built residential house. The court recognized the plaintiff’s ownership to the house located at 19 Zelena St., Nelhivka Village, Primorsky region, as ownership to the newly built property.
The court found out that the testator Z. lived at the stated address from 1966 up to his death on November 9, 2000. The plaintiff Z. has in her use the land plot of 0,18 hectares, including 0,04 hectares for building maintenance and 0,14 hectares for personal agriculture purposes, located at 19 Zelena St., Nelhivka Village, Primorsky region. The decision of the Executive Committee of Zelenivska Village Council of July 30, 2010 approved the admission to exploitation of the residential house and outbuildings.
In this case it was not found out by the court who and when completed the construction of the residential building, as the testator’s ownership right was not installed at the moment of completion of the construction of the building.
Some courts mistakenly satisfy the claims for recognition of the testator’s ownership to the unauthorized construction and acknowledge its transfer to the heir by inheritance.
For example, the decision of Kharkiv District Court of November 7, 2008 in the case № 2-1691/2008 satisfied the claims of H. to Merefa City Council and recognized the ownership to the unauthorized construction of trade pavilion by H., who died on 19 December, 2007, and its transfer by inheritance to the plaintiff in order provided by law.
The recognition of ownership by the deceased violates the rules of substantive and procedural law. According to Article 25 of the CC of Ukraine the civil legal capacity of a person shall be terminated at the moment of their death. Contrary to the provisions of Article 3, Articles 27-31 of the CPC of Ukraine, the court decided on the rights of persons who are not parties to the process and have no legal procedural capacity due to the death. According to Article 30 of the CPC of Ukraine the parties in the case are the plaintiff and the defendant, who may be represented by natural and legal entities and the state.
In disputes on ownership rights, it is wrong to recognize the inherited property as unauthorized construction provided there are documents on land allocation and construction passport etc., but the house has not been admitted to exploitation or the ownership right has not been registered in the Bureau of Technical Inventory.
For example, the citizen D. filed the claim to Vorobyovsky Village Court for the recognition of ownership by inheritance after the death of T. to the unauthorized construction of the house built in 1958 and allocated at 57 Usadba Street, Vorobyovka village, Bilogirsky region.
However, in course of case examination it was found out that the house was not the unauthorized construction, though there were no ownership documents for the house. Then the plaintiff clarified the claims and they were satisfied by the decision of Bilogirsky court of Khmelnitsky region of August 10, 2010.
The construction shall be recognized uncompleted and not unauthorized, if there are documents confirming the allocation of land for development and housing construction, but the house has not been admitted to exploitation.
The testator shall have no ownership rights to the unauthorized reconstruction of the house in case it violates the requirements of part 1 Article 376 of the CC of Ukraine, and thus it shall not be the part of the legacy to be transferred to the heir.
For example, the decision of Kivertsi District Court of Volyn region of November 20, 2011, which recognized the ownership by inheritance of the citizen Z. to the unauthorized reconstruction of the residential house and outbuildings located in Ozertso village of Kivertsi area, violates the provisions of part 1 of Article 376 of the CC of Ukraine.
The case materials show that according to the property certificate the testator Z., who died on June 29, 2004, owned the house of 57,1 square meters. As a result of the unauthorized reconstruction without the permission of the executive committee, technical documentation, conclusions of relevant services on compliance with building codes and fire protection requirements, through reconstruction and extension the total area of the house was enlarged to 101,6 square meters.
According to clause 7 of the Plenum Resolution of the High Specialized Court of Ukraine for Civil and Criminal Cases of March 30, 2012 № 6 “On Practice of Application by Courts of Article 376 of the Civil Code of Ukraine (on the legal regime of unauthorized construction)” the provisions of Article 376 of the CC of Ukraine are inapplicable in dealing with the claims for recognition of unauthorized reconstruction of flats in multi-apartment buildings, as legal relations in such cases are regulated by other legislative rules, in particular, by Article 383 of the CC of Ukraine and the relevant rules of the Housing Code of Ukraine.
According to part 2 of the CC of Ukraine the flat owner shall be free to carry out any repairs and changes of the flat provided that these changes do not violate the rights of owners of other flats as well as sanitary and exploitation requirements.
According to Article 392 of the CC of Ukraine it is possible to recognize the ownership by inheritance to the unauthorized reconstruction in cases of reconstruction of flats in multi-apartment buildings and rooms in hostels with preservation of the supporting structure, without exceeding the allowable loads on floors, walls and foundations, subject to the existing architectural and planning requirements; as according to the order of the Cabinet of Ministers from September 30, 2009 “On permits for preparatory and construction works” it is not required to obtain permits for reconstruction of flats in multi-apartment buildings, rooms in hostels and common premises with preservation of the supporting structure, without exceeding the allowable loads on floors, walls and foundations, subject to the existing architectural and planning requirements.
For example, the decision of Kyiv District court in Poltava from September 22, 2010 refused to satisfy the claim of the citizen L. against the Executive Committee of Kyiv District Council in Poltava, JSC “Poltavakholod”, Bureau of Technical Inventory “Inventaryzator” for recognition of ownership by inheritance to the unauthorized reconstruction. The claim was refused by the court of the first instance on the grounds that there was no evidence of compliance of the mentioned reconstruction to the state safety, security and design standards.
The Court of Appeal cancelled the aforementioned decision and satisfied the claim of the citizen L. on the grounds of technical conclusion on inspection of building structures in flat 43 located at 4 Zinkivska Street, which proved that installation of the wall with the door in common premises and of the separate door in flat 44 has no devastating impact on building structures and slightly improves the living conditions of the residents of both flats, as the apartment does not meet modern standards (no kitchen, bathroom). After reconstruction the flats № 43 and № 44 do not have common premises. In this connection the branch of the State Research Institute “Reconstruction Project” recognized the ownership to the unauthorized reconstruction of common premises in the flat № 43, and corrected the discrepancies in the registration documents of the flats № 43 and № 44.
Thus, the heirs’ ownership right to the objects of unauthorized construction shall be recognized by courts, despite the fact that the general rules of the Sixth Book of the CC of Ukraine provide that the inheritance certificate shall be issued by the notary, and in these cases there is no dispute about the right of inheritance or ownership between the subjects of civil legal relations. The need for recognition of ownership right to the objects of unauthorized construction in judicial procedure shall be minimized. The complexity of legal feasibility of judicial recognition of ownership rights to the objects of unauthorized construction raises the question of amendments to Article 376 of the CC of Ukraine. However, if according to the applicable legislation (part 3, part 5 of Article 376 of the CC of Ukraine) the recognition of ownership right to the object of unauthorized construction belongs to the testator, it shall also belong to the heir who accepted the inheritance.
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