Protection of ownership and other property rights
But there is a right of ownership and there are other property rights.
How to protect ownership
According to part 1 of Article 316 of the Civil Code, the right of ownership is the right of a person to a thing (property), which he exercises in accordance with the law of his own free will, regardless of the will of others.
According to part 1 of Article 317 of the Civil Code, the owner has the right to possess, use and dispose of his property.
According to part 1 of Article 321 of the Civil Code, the right of ownership is inviolable. No one cannot be unlawfully deprived of this right or restricted in exercising it.
- statement of claim on prohibition of actions that may violate the right of ownership (Part 2, Article 386 of the Civil Code),
- statement of claim about obligation to take certain actions to prevent infringement of ownership rights (part 2 of Article 386 of the Civil Code of Ukraine),
- statement of claim for compensation of property and moral damages caused as a result of violation of ownership rights (part 3 of Article 386 of the Civil Code),
- claim for recovery of one’s property from unlawful possession (vindication claim; under the vindication claim we understand the claim of a non-owner to the unlawful owner for the recovery of his property in kind. The parties in a vindication claim are the owner of a thing, but not only deprived of an opportunity and does not actually own it, but the illegal actual owner of the thing (both bona fide and non-bona fide), i.e. the content of the vindication claim is the claim for the very thing, which left the legal possession of the owner) (part 1 of Article 387 of the Civil Code),
- claim for removal of obstacles in exercising the right to use and dispose of one’s property (negative claim; the owner’s rights and interests may also be violated in cases where the property does not leave his possession, but third parties create obstacles in the use or disposal of property; in such cases, the owner may protect his ownership right against violations with a claim, which is called a negative claim) (Part 1 of Article 391 of the Civil Code),
- claim for recognition of ownership right (if this right is disputed or not recognized by another person, as well as in the case of loss of the title document) (part 1 of Art. 392 of the Civil Code),
- claim for the recognition of illegal and cancellation of a legal act of a state authority, authority of the Autonomous Republic of Crimea or local government, which violates the right to property, with compensation for property and moral damages (Article 393 of the Civil Code),
- claim for compensation for damage caused to the owner of a land plot, a house, other buildings in connection with the reduction of their value (part 1 of Art. 394 of the Civil Code).
In the formation of legal positions in this category of cases it is necessary to be guided by Chapter 29 of the Civil Code of Ukraine and other special rules of law, in addition, one should take into account the decision of the Plenum of the High Specialized Court of Ukraine for Civil and Criminal Cases «On judicial practice in cases of protection of ownership and other proprietary rights» of February 7, 2014 № 5, by decision of the Plenum of the High Specialized Court of Ukraine for Civil and Criminal Cases «On judicial practice in cases of release from seizure of property» of June 03, 2016 № 5, by the practice of the European Court of Human Rights on international legal mechanisms for the protection of property rights, the legal positions of the Supreme Court of Ukraine in cases № 6-92cc15, № 6-244cc14, № 6-1851cc15, № 6-1cc15, № 6-348cc15, № 6- 1920cc15, № 6-2510cc15, № 6-265cc16.
Other property rights
According to part 1 of Article 395 of the Civil Code, the proprietary rights to another’s property are:
- the right of possession;
- the right of use (servitude);
- the right to use a land plot for agricultural purposes (emphyteusis);
- the right to plot development (superficies).
According to part 1 of Art. 396 of the Civil Code, a person who has a property right to another’s property, is entitled to protection of this right, including from the owner of the property, according to the provisions of Chapter 29 of this Code.
Services of a lawyer for the protection of property rights in Ukraine
But this is all “dry” jurisprudence, the client only needs to seek legal assistance from a lawyer, provide for review the documents certifying ownership or other proprietary right, provide all available information and tell exactly what, in his opinion, is the violation of his proprietary right. The rest is the lawyer’s work.
It does not always make sense to get involved in a long lawsuit, as it seems to the client. First of all, it is necessary to find out whether there is a right in rem and how it is confirmed, then it is necessary to establish whether there really is a violation of this right and how it is expressed, then it is necessary to choose the right method of protection, according to the disputed nature of legal relations, then to follow the procedure, and so on.
In other words, victory lies in preparation!
