Dispute over the fence between neighbors: The Supreme Court explained which circumstances do not need to be clarified to resolve the case

If the court has already established the fact of violation of the landowner’s rights and has sufficient evidence to eliminate it, appointing an additional land-technical examination solely to clarify the reasons for the dispute is unnecessary. This conclusion follows from the ruling of the Cassation Civil Court as part of the Supreme Court.

The Cassation Civil Court of the Supreme Court upheld the decisions of the lower courts, which obliged the owner of the adjacent land plot to remove obstacles to the neighbor’s land use by demolishing the fence foundation and restoring the boundary according to the title documents. At the same time, the Supreme Court agreed that there were no grounds for appointing an additional land-technical examination in this case, as the issues proposed by the defendant to be examined went beyond the scope of evidence.

Circumstances of the case

The plaintiff purchased a residential house along with a land plot and then filed a lawsuit against the owner of the adjacent plot. She claimed that the neighbor had shifted the common boundary between the land plots, built a foundation for a new fence, and thereby created obstacles for her use of the rightful land plot. She requested the demolition of the foundation and restoration of the boundary according to the title documents.

During the case consideration, the court appointed a land-technical examination. The experts established that the fence foundation was not located according to the boundaries defined by the documents for both land plots. They also concluded that the boundary violation occurred due to the fence being shifted towards the plaintiff’s land plot by a distance of 0.37 to 0.97 meters. The area of overlap of the actual boundaries was 23.8 square meters. The experts proposed a method for restoring the boundaries according to the title documents.

The court of first instance partially satisfied the claim and obliged the defendant to remove obstacles to land use by demolishing the fence foundation and restoring the common boundary according to the expert’s conclusion. The other part of the claim was denied as it concerned boundaries that did not affect the plaintiff’s rights. The appellate court agreed with this decision.

Defendant’s arguments

In the cassation appeal, the defendant insisted that the courts unjustifiably refused to appoint an additional examination. In his opinion, it was necessary to establish whether the configuration of his land plot corresponded to the original allocation materials, the reasons for the boundary overlap, and whether there were other options to eliminate such overlap.

He also claimed that his land plot was formed back in the 1980s, long before the plaintiff acquired ownership rights, and that the cause of the dispute could be technical errors during the preparation of land management documentation or the entry of data into the State Land Cadastre.

Supreme Court’s position

The Cassation Civil Court agreed with the conclusions of the lower courts.

The Supreme Court noted that the judicial land-technical examination conducted in the case established all the circumstances necessary to resolve the dispute: the fact of boundary overlap, violation of the common boundary due to its shift, the location of the fence foundation, and the method of restoring the boundaries according to the title documents. These circumstances were within the scope of evidence in the case.

In contrast, the issues the defendant asked the experts to additionally address concerned the reasons for the land plot overlap, including possible errors during the preparation of land management documentation, data entry into the State Land Cadastre, or other circumstances of boundary formation.

As the Supreme Court noted in case 511/220/21, such issues were not subject to evidence in this dispute. They did not affect the resolution of the claim to remove obstacles to land use, so the courts reasonably refused to appoint an additional examination.

The Cassation Civil Court also rejected arguments about the absence of the Supreme Court’s legal conclusion regarding the application of Article 113 of the Civil Procedure Code of Ukraine. The court emphasized that the cassation instance’s practice regarding the grounds for appointing additional examinations is consistent. At the same time, the Supreme Court drew attention to the fact that legal conclusions are formed taking into account the specific factual circumstances of each case and cannot be mechanically applied to any other disputes.

Separately, the Supreme Court rejected the defendant’s arguments that his land plot was formed before the plaintiff acquired ownership rights. The court noted that these arguments do not refute the fact established by the courts of the common boundary violation and do not affect the correctness of the conclusions regarding the necessity to remove obstacles to land use.

In conclusion, the Cassation Civil Court dismissed the cassation appeal, leaving the decisions of the courts of first and appellate instances unchanged.

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