Quite often, situations where co-owners of a multi-apartment building are faced with illegal alienation of premises that are in common ownership.
This is usually due to the identification of the concepts of "auxiliary premises" and "non-residential premises". Like the first and second is not a housing stock, however, the first one - may be alienated, the second - no.
The definition of these categories is provided in the Law of Ukraine "On the peculiarities of realization of the right of ownership in an apartment building". Non-residential premise is an isolated premise in an apartment building that does not belong to a housing stock and is an independent object of real estate. The status of non-residential premises must be specified in the technical documentation and registered with the BTI. Ownership of non-residential premises is acquired on the general grounds established by law.
The auxiliary premises intended to provide the operation of the house and household services to its inhabitants are indivisible and cannot be allocated in kind. The auxiliary rooms (basements, sheds, pantries, attics, barrels, etc.), in accordance with the decision of the Constitutional Court of Ukraine dated March 2, 2004 No. 4-rp / 2004, are transferred free of charge to the joint ownership of citizens at the same time as the privatization of their apartments. Confirmation of ownership of auxiliary premises does not require additional actions, in particular the creation of the association of co-owners of an apartment building, joining it. The owner (owners) of the non-privatized apartment of the multi-apartment building is co-owner (co-owners) of auxiliary premises on a par with owners of privatized apartments.
Owners of apartments and non-residential premises should know that in case of alienation of an apartment or non-residential premises the new owner acquires all rights of the previous owner as co-owner.
Consequently, owners of privatized, non-privatized apartments and non-residential premises lose the right to joint ownership of the auxiliary premises after the alienation of an apartment or non-residential premises.
Everything seems to be clear, but due to the lack of a clear mechanism for establishing the status of the premises, there are significant difficulties in distinguishing the notions of "non-residential" and "subsidiary". Unfortunately, it uses local governments, house managers, construction customers, developers and sells "non-residential" premises that are actually "auxiliary" and are in common ownership.
It is possible to claim property from someone else's illegal possession, but only in court. This is again confirmed by the decision of the Kovpakivsky District Court of Sumy of August 2, 2018 in the case No. 592/2447/18.
The Highest specialized court of Ukraine for the consideration of civil and criminal cases specified the following case.
First, plaintiffs are the owners of residential premises (apartments) and residents of the building (confirmed by copies of pages of passports of plaintiffs, copies of the certificate of ownership of housing and copies of contracts for the purchase of housing).
Secondly, the plaintiffs by virtue of the law are co-owners of non-residential premises (in accordance with Part 2 of Article 388 of the Civil Code of Ukraine, Article 19 of the Law of Ukraine on the Association of Co-Owners of a Multi-Apartment House, Article 1 of the Law of Ukraine on the Peculiarities of Realization of Ownership in the multi-apartment building, the decision of the Constitutional Court of Ukraine dated March 2, 2004 No. 4-rp / 2004, paragraph 2 of Article 10 of the Law of Ukraine on Privatization of the State Housing Fund, Articles 41, 55 of the Constitution of Ukraine.
Thirdly, the disputed premises, in accordance with the conclusion of the court building and technical expertise, are auxiliary premises intended to ensure the operation of the house, domestic service of the residents, as well as the observance of sanitary and hygienic conditions and the safe operation of apartments.
Fourth, since the builder of the building was not and could not be the owner of the basements (household chests), he did not have the right to pursue their alienation.
Consequently, in similar cases, taking into account the provisions of Article 36.1 of the Civil Code, the owner has the right to claim his property from someone else's illegal possession regardless of whether the defendant indicates that he is a bona fide acquirer if he proves the fact of the property lease from his possession or possession of the person , to which he transferred the property, not by their will.
As you can see, it is necessary to prove the fact of the property lease from legal possession. For co-owners of an apartment building, the "auxiliary premises" are the subject of the right of joint ownership. So, the most difficult is to bring directly the status of the premises as "auxiliary".
In the decision of April 1, 2015 in the case number 6-36875sv14 noted that for determining the premises auxiliary, it is necessary to prove the fact that without access to disputed objects cannot be exploited at home: "The plaintiffs did not provide the court with the appropriate and admissible evidence to confirm the ownership of the premises indicated by them to the auxiliary, which provide the operation of the house and household maintenance of the house, the location of their technical equipment of house, without access to which operation residential building is impossible".
A similar position is also contained in the decision of the High Specialized Court of Ukraine for the consideration of civil and criminal cases in the decisions of February 11, 2015 in the case No. 6-39117sv14 - "auxiliary and non-residential premises represent different parts of the multi-apartment building, which differ in their purpose, it is necessary Determine whether this is an auxiliary, in which or in part of which there may be technical equipment at home (engineering communications and technical devices necessary to ensure sanitary and hygienic conditions and without furnace exploitation of apartments, etc.), without access to which the operation of a residential building is impossible. "
In the decision of February 3, 2016 in the case No. 6-28714, s. 15, the High Court of Ukraine for the consideration of civil and criminal cases noted that "the courts did not find out if the non-residential premises were built in a separate non-residential space at the time the building was put into operation, or in the place where it is located, was through the passage. " The said decisions indicate the need to establish the technical characteristics of the utility room and its importance in the operation of the entire building.
Summing up the foregoing, in order to obtain a positive decision in cases concerning the recovery of joint property from someone else's illegitimate possession, the plaintiffs must first prove the status of this property as an "auxiliary room".