Children Registered in the Apartment: The Supreme Court Explained Whether This Prevents Dividing Rooms Among Co-owners

Joint ownership of an apartment does not automatically grant each co-owner unrestricted use of the dwelling. Should a conflict arise between co-owners regarding room allocation, and they are unable to reach an agreement, the court can intervene to determine the order of use. In such instances, the court does not divide the apartment or alter ownership shares; rather, it designates specific premises for each co-owner’s use, with certain areas remaining communal.

A common question in

practice is whether the court can establish such an order if minor children of one co-owner are registered or have a right to use the apartment. The Civil Cassation Court of the Supreme Court has clarified that a child’s mere right to use the apartment does not preclude the court from determining the order of use among co-owners. However, the court must assess all factual circumstances pertinent to each specific case.

Circumstances of the Case

The dispute involved three co-owners of a two-room apartment, each holding a one-third share in joint partial ownership. Due to persistent conflicts, the co-owners could not agree on the allocation of rooms. The plaintiff stated that ongoing domestic disputes, partly stemming from the defendant keeping a dog and the lack of agreement on apartment usage, necessitated judicial intervention to determine the order of use for the common property.

The plaintiff requested exclusive use of the larger room, measuring 17.2 sq. m, while the defendant would be assigned the smaller room, 10.5 sq. m, and built-in wardrobes. The kitchen, corridor, and bathroom were to remain for common use. The third co-owner, who did not reside in the apartment, supported the claim.

Both the courts of first instance and appellate instances upheld the claim, establishing the proposed order of apartment use.

Arguments of the Cassation Appeal

The defendant lodged an appeal against these decisions with the Supreme Court.

She contended that the courts had failed to consider the interests of her children, who were registered at the apartment, and that the determined order of use allegedly worsened their living conditions. Furthermore, she argued that this arrangement did not align with the co-owners' ownership shares, as she had been allocated the smaller room. She also referenced previous legal conclusions from the Supreme Court in other cases.

What the Supreme Court Decided

The Civil Cassation Court dismissed the cassation appeal, upholding the decisions of the courts of first instance and appellate instances.

The Supreme Court reiterated that, in accordance with Article 358 of the Civil Code, co-owners can independently agree on the possession and use of common property. Should an agreement prove unattainable, the dispute is to be resolved by the court. The court determines the order of apartment use by assigning separate premises to each co-owner, with common areas remaining shared. Such a decision does not alter the size of the co-owners' ownership shares.

The Civil Cassation Court observed that, in this case, each co-owner possessed one-third of the apartment. However, due to the layout of the two-room dwelling, it was impossible to achieve an exact correspondence between the area of the rooms and the ideal shares. Consequently, a slight deviation from the mathematical correspondence between the premises actually assigned for use and the ownership shares is permissible. This approach does not constitute a redistribution of ownership rights and does not infringe upon the rights of co-owners.

The court also noted that the fact that one co-owner did not physically reside in the apartment did not affect her ownership rights or deprive her of the right to participate in decisions regarding the use of common property.

Why the Supreme Court Rejected Arguments Regarding Violation of Children’s Rights

In case 712/4337/24, the Supreme Court specifically addressed arguments that the court-determined order of use violated the rights of the defendant’s minor children.

The courts established that the defendant’s elder son had resided at a different address since childhood, and the younger son was, at the time of the case, undergoing social and psychological rehabilitation at a children’s centre. Thus, the case materials confirmed that they did not actually live in the disputed apartment.

Concurrently, the Civil Cassation Court formulated a significant legal conclusion: the existence of a child’s right to use the apartment does not impede the court’s ability to determine the order of use among co-owners.

The court clarified that a child’s right to use is derived from their mother’s ownership right as a co-owner of the apartment. Therefore, the existence of such a right for the children does not prevent the determination of the order of use among co-owners and does not alter the size of their ownership shares.

Subscribe to our Telegram channel t.me/sudua, follow SUD.UA on Google News , and join us on VIBER, WhatsApp, Facebook and on Instagram to stay informed about the important events.