Is it possible to evict a mobilized person from an apartment: The Supreme Court gave an answer

Housing disputes regarding the loss of the right to use premises have become especially relevant under martial law, when a significant number of citizens are absent from their place of residence for a long time due to military service, evacuation, or other war-related circumstances. In such cases, courts must ensure a balance between the interests of those who actually use the housing and the constitutional guarantees of the right to housing for those temporarily absent for valid reasons.

These conclusions were reached by the Supreme Court in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court in case No. 161/16767/23 dated June 10, 2026, considering a dispute about recognizing a person as having lost the right to use residential premises.

Case circumstances

The plaintiff filed a lawsuit against her brother seeking to recognize him as having lost the right to use the apartment.

She argued that she has been registered and permanently residing in the disputed apartment since 1983, independently bearing the costs of its maintenance, while the defendant actually lives at another address and does not pay utility bills. The plaintiff also stated that due to the brother's registration in the apartment, she could not apply for a subsidy.

The court of first instance satisfied the claim and recognized the defendant as having lost the right to use the housing.

However, the appellate court overturned this decision and denied the claim. The court noted that the plaintiff did not prove the defendant's non-residence without valid reasons, and since June 2022, the defendant had been serving in the Armed Forces of Ukraine under mobilization. Moreover, at the end of 2024, he was wounded and underwent treatment and rehabilitation.

The plaintiff appealed the appellate court's ruling to the Supreme Court, insisting that the defendant stopped living in the apartment back in 2019, long before mobilization.

Position of the Supreme Court

The Supreme Court indicated that the fact of temporary absence of a physical person and the related legal consequences (Articles 71, 72 of the Housing Code of Ukraine) must be distinguished from the fact of permanent absence due to moving to permanent residence in another locality or another residential premises in the same locality (Article 107 of the Housing Code of Ukraine).

The court emphasized that for disputes considered under Articles 71–72 of the Housing Code, the determining factors are the duration of the person's absence and the validity of the reasons for such absence.

The Supreme Court stressed that when resolving a dispute about recognizing a person as having lost the right to use residential premises under Articles 71, 72 of the Housing Code, the parties must prove and the courts must establish the circumstances of the duration of the person's temporary absence from the residential premises, as well as the validity of the reasons for such absence.

Analysis of Articles 71, 72 of the Housing Code shows that to recognize a person as having lost the right to use residential premises, two conditions must be met simultaneously: absence of the person without valid reasons beyond the established period, and absence of valid reasons for not residing at the address of such residential premises.

The court also noted that the procedural law imposes on the plaintiff the obligation to prove the fact of the defendant's absence beyond the terms established by Article 71 of the Housing Code, and on the defendant—to refute the long-term absence or prove that such absence is due to valid reasons.

Separately, the Supreme Court emphasized the importance of the right to housing guaranteed by Article 8 of the Convention and reminded that loss of housing is the most extreme form of interference with the right to respect for one's home.

Thus, when deciding on the presence of legal grounds for eviction or recognition of a person as having lost the right to use housing, which essentially deprives the right to housing, the court in each case, based on the rule of law principle, must assess whether the interference with the person's right to respect for their home is not only lawful but also "necessary in a democratic society."

In other words, it must correspond to a "pressing social need," including being proportionate to the legitimate aim pursued.

The Supreme Court pointed out that the plaintiff did not provide sufficient evidence that from May 2019 to May 2022 the defendant did not live in the disputed apartment without valid reasons, since there was a long-standing conflict and hostile relations between the parties, and she effectively did not allow the defendant access to the disputed premises.

Moreover, the court emphasized that the documents in the case confirm that since June 2022 the defendant was called up for military service under mobilization in the Armed Forces of Ukraine, was wounded at the end of 2024, and underwent treatment and rehabilitation.

Therefore, his absence from the disputed housing from the moment of mobilization and at the time of filing the claim is due to valid reasons (fulfillment of a constitutional duty), which excludes loss of the right to housing under Articles 71, 72 of the Housing Code of Ukraine.

The Supreme Court also supported the appellate court's conclusion that in the absence of convincing evidence of long-term and deliberate non-residence of the defendant in the disputed housing without valid reasons, depriving him of the right to use this residential premises would contradict the requirements of the law and the guarantees enshrined in Article 8 of the Convention.

Thus, the Supreme Court left unchanged the appellate court's ruling denying recognition of the defendant as having lost the right to use the housing.

Therefore, military service under mobilization and subsequent treatment after injury are valid reasons for non-residence. Additionally, when resolving similar disputes, courts must consider the guarantees of the right to housing provided by Article 8 of the Convention and assess the proportionality of interference with this right.

Read also the important position of the Supreme Court regarding whether long-term residence and a strong connection to housing can stop eviction.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp pages on Facebook and Instagram to stay informed about the most important events.