The Court of Appeal Cancelled the City Council's Decision to Transfer Part of the Street into Private Ownership: Case Details

The panel of judges of the Rivne Court of Appeal reviewed the court decision challenged by the plaintiff’s representative, whose claim against the city council and the owner of the disputed land plot to invalidate and cancel the local government’s decision and to cancel the state registration of ownership rights to the land plot was denied by the local court. This was reported by the court.

Circumstances of the Land Dispute

The appellant requested to cancel the contested decision of the court of first instance and to adopt a new decision satisfying her claims.

The Rivne Court of Appeal partially satisfied the appeal, considering the current legislation and the circumstances of the case.

The court established that the defendant acquired ownership of a residential property in Rivne based on a gift agreement and simultaneously acquired the land plot on which it is located.

At the defendant’s request, the city council at a regular session adopted a decision "On granting permission to develop a land management project for the gratuitous transfer into ownership of a land plot on the street where part of the adjacent territory is located".

After assigning a cadastral number to the disputed land plot, the local government approved the project at a regular session, as a result of which the defendant acquired the disputed land plot into private ownership.

At the defendant’s request, the state registrar of the department of state registration of real property rights decided to merge two plots and assign them one cadastral number.

The plaintiff in case No. 569/8474/25 is the owner of the adjacent land plot and became a neighboring land user of the defendant after she acquired ownership of the land plot.

Thus, a conflict arose between the parties regarding the use of part of the land plot, which, based on the city council’s decision, was transferred free of charge to the defendant’s ownership, part of which is a street used by the plaintiff for access to her residential property.

Conclusions of the Court of Appeal

Disagreeing with the decision of the lower court, the appellate court noted the following.

According to paragraph "g" of parts 1 and 3 of Article 121 of the Land Code of Ukraine (hereinafter — LC of Ukraine), citizens of Ukraine have the right to free transfer of land plots from state or communal land in the following sizes: for construction and maintenance of a residential house, household buildings and structures (homestead plot) — in villages — no more than 0.25 ha, in settlements — no more than 0.15 ha, in cities — no more than 0.10 ha.

As seen from the content of the contested city council decision challenged by the plaintiff, the defendant was transferred ownership of a land plot of 242 sq.m. for construction and maintenance of a residential house, household buildings and structures.

At the same time, as noted above, the Rivne resident, based on the gift agreement, simultaneously acquired ownership of a land plot for servicing the residential property of 0.10 ha along with ownership of the residential property.

Part of the garage, which belongs to the defendant by ownership right, is actually located outside the 0.10 ha land plot, which was the reason for her appeal to the local government to formalize ownership rights to the land plot under the structure.

The defendant exercised her right to legally formalize ownership of the disputed land plot.

However, the city council, deciding on the transfer of the land plot on which the garage is located to the Rivne resident, actually transferred to her a land plot significantly larger than the area of the building owned by her, including the street, which is public land.

According to part 1 of Article 83 of the LC of Ukraine, lands owned by territorial communities of villages, settlements, cities are communal property.

According to paragraph "a" of part 4 of Article 83 of this Code, communal lands that cannot be transferred into private ownership include lands of general use in settlements (streets, driveways, roads, etc.).

The case materials confirm that part of the disputed land plot of the defendant was privatized, including at the expense of communal lands that cannot be transferred into private ownership.

The defendant did not refute this circumstance.

Since the local government violated land legislation requirements when transferring the land plot into the defendant’s ownership, the appellate court concluded to recognize the city council’s decision as invalid.

In case of cancellation of the state registrar’s decision on state registration of rights based on a court decision or in cases provided by paragraph 1 of part 7 of Article 37 of the Law of Ukraine "On State Registration of Property Rights to Real Estate and Their Encumbrances," based on the decision of the Ministry of Justice of Ukraine, as well as in case of recognition or cancellation of documents on the basis of which state registration of rights was carried out, the corresponding rights or encumbrances are terminated.

Thus, the claim to invalidate and cancel the local government decision on transferring part of the disputed land plot into the defendant’s ownership is grounds for terminating the state registration of property rights made on its basis.

The claims to cancel the state registrar’s decision on state registration of the defendant’s ownership of the land plot, as well as to invalidate and cancel the city council’s decision to grant permission to develop a land management project for the gratuitous transfer of the land plot on which part of the adjacent structure is located (the latter being only a stage in obtaining ownership rights and does not guarantee acquisition of such rights), are not subject to satisfaction.

These conclusions are set out in the ruling dated October 17, 2018, in case No. 380/624/16 (proceeding No. 14-301цс18), where the Grand Chamber of the Supreme Court concluded that the decision to grant permission to develop a land management project is not a legal act establishing rights and does not guarantee a person or an indefinite circle of persons the acquisition of ownership or use rights to a land plot.

The panel of judges decided to cancel the contested decision of the lower court challenged by the plaintiff and to adopt a new decision partially satisfying the claim: recognizing as invalid and canceling the city council’s decision "On approval of the land management project for the gratuitous transfer into ownership of the defendant of the land plot on which part of the adjacent structure is located."

The appellate court denied the plaintiff’s remaining claims.

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