Unauthorized construction cannot be divided: The Supreme Court determined the fate of the reconstructed house
The residential building, the major reconstruction of which was carried out by the former spouses without an approved project and the necessary permits, and which was not commissioned in accordance with the law, is considered unauthorized construction. In this case, the ownership right to the reconstructed house does not arise for either spouse, therefore it is not subject to division and joint ownership rights cannot be recognized.
Case circumstances
The plaintiff filed a lawsuit to recognize the residential building as an object of joint ownership of the spouses and to divide it into equal shares. She argued that since 2001 she was registered in the residential building inherited by the defendant after his father’s death. During the marriage, having a higher income than her husband and working as a private entrepreneur, she made significant capital investments to bring the house to a habitable condition, carried out its reconstruction, remodeling, and improvements, as a result of which its value, total and living area significantly increased, and the technical condition of the property improved due to her participation, funds, organizational actions to obtain the necessary permits, start construction registration, legalization of the built structures, and actual construction works.
Position of the court of first and appellate instances
The court of first instance satisfied the claim, referring to the fact that the disputed residential building was remodeled, improved, and commissioned at the expense of the plaintiff during the registered marriage, therefore the disputed property is an object of joint ownership of the spouses and subject to division into equal shares between the former spouses.
The appellate court disagreed with the conclusions of the first instance court, canceled the decision, and issued a new decision rejecting the claim, reasoning that the residential building was reconstructed by the former spouses without permits and a project, and therefore under Article 376 of the Civil Code of Ukraine it is unauthorized construction, which is not an object of ownership rights and is not subject to division.
Position of the Supreme Court
The Supreme Court agreed with the appellate court’s conclusion.
According to Article 331 of the Civil Code of Ukraine, if the law requires commissioning of real estate, ownership arises only from the moment of such commissioning and state registration.
According to Article 376 of the Civil Code of Ukraine, real estate constructed without the appropriate document or duly approved project is considered unauthorized. The person who carried out such construction does not acquire ownership rights to it.
Until commissioning and registration, the object is not real estate in terms of civil turnover. In this case, the parties are only owners of the building materials and equipment used.
Since the reconstructed house was not commissioned, it cannot be recognized as an object of joint ownership of the spouses and is not subject to division as real estate.
Supreme Court ruling dated February 28, 2025, in case No. 405/7250/17 (proceeding No. 61-7938св24).
Note that we analyzed when unauthorized construction can be legalized through a simplified procedure, when a construction amnesty applies, and in which cases a much more complicated process must be followed.
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