The Supreme Court Clarifies Whether a Resident Can Claim an Apartment Building's Attic for Personal Use

The Supreme Court has affirmed that a resident of an apartment building cannot unilaterally expand their apartment into the attic if it is common property shared by all co-owners of the building.

A lawsuit to annul such a state registration is an appropriate legal remedy if the ownership of the apartment as an independent entity is not in dispute.

Case Details

The Condominium Association (OSBB) initiated legal proceedings after one of the apartment owners nearly doubled the size of her apartment by incorporating a section of the attic.

To support its claims, the plaintiff (OSBB) argued that the attic's auxiliary premises had been transferred to the association's balance sheet. One of the residents, an apartment owner, without the consent of the other co-owners, increased her living space by almost double through the annexation of attic space.

The OSBB deemed this registration unlawful, considering the attic to be common property belonging to all co-owners of the building.

The court of first instance, whose conclusions were upheld by the appellate court, partially granted the claim. It found that a portion of the apartment, measuring 109.0 sq. m, which belonged to the resident by right of ownership, was registered to the defendant by the contested decision of the state registrar without valid title documents. This expansion was achieved at the expense of the auxiliary attic premises, which constitute common joint property of the building's residents.

The Supreme Court's Decision

The Supreme Court concurred with the lower courts' findings, noting that, in accordance with Article 382 of the Civil Code of Ukraine and the interpretation by the Constitutional Court of Ukraine of paragraph 2 of Article 10 of the Law of Ukraine "On Privatization of State Housing Fund," apartment owners, regardless of how they acquired ownership rights, are co-owners of the building's auxiliary premises (attics, basements, etc.). Confirmation of ownership rights to such premises does not necessitate additional actions, including the establishment of a condominium association.

Auxiliary premises of an apartment building are restricted in their circulation; they cannot be separately alienated or constituted as a distinct real estate object for private ownership. The principle of joint exercise of ownership rights mandates that any action concerning the re-equipment or reconstruction of auxiliary premises must be agreed upon by all co-owners. Furthermore, the common property of an apartment building cannot be divided among co-owners, and they do not have the right to claim a physical share of it.

The Supreme Court underscored that cancelling the state registrar's decision and the entry of ownership rights is an appropriate means of protecting co-owners' rights in such disputes. Given that the defendant failed to provide evidence of the legality of acquiring rights to the attic and the consent of other residents to increase her apartment's area, the courts correctly concluded that the registration was unlawful.

The Supreme Court ruling is dated June 10, 2026, in case No. 761/38626/23 (proceeding No. 61-10602св25).

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