Practical application of the principle of unity of the legal destiny of the land plot and real estate objects located on it

Abstract

The issue of the rights of real estate owners protection is becoming more and more urgent, since various schemes for the alienation of such objects and the registration of property rights to them are being implemented in practice. This most acutely concerns the issue of legal regulation of land plots on which real estate objects are located.

The purpose of this article is to conduct both theoretical and practical analysis of the unity of legal fate of the land plot and located on it real estate objects principle application.

The legislation of Ukraine is based on the principle of the unity of the legal fate of the land plot and the real estate located on it, according to which the land plot follows the real estate, such provisions were contained in Art. 28 of the Land Code of Ukraine as amended in 1990; analogous to which are the provisions of Art. 120 of the current Land Code of Ukraine and Art. 377 of the Civil Code of Ukraine.

As of today, there is a rule in the Land Code of Ukraine that in case of acquisition of ownership rights to an object of immovable property (a residential building (except for an apartment building), another building or structure), an object of unfinished construction located on a plot of land (except for state lands, communal property), ownership of such a plot of land simultaneously passes from the alienator (previous owner) of such an object to the acquirer of such an object without changing its purpose. In the event that the alienator (previous owner) of such an object owned a share in the right of joint ownership of a land plot, ownership of such a share is transferred to the acquirer of this object.

This principle is also followed in judicial practice (in the decisions of the Supreme Court of Ukraine, the Supreme Court, and the Grand Chamber of the Supreme Court), in particular, in the decisions of the Supreme Court of Ukraine dated April 13, 2016 (case No. 6-253цс16), dated October 12, 2016 ( case  No 6-2225цс16), dated May 15, 2017 (case No 705/6917/14-ц), resolutions of the Great Chamber of the Supreme Court dated December 5, 2018 (case No 713/1817/16-ц), dated April 3, 2019 (case No 921/158/18), dated October 16, 2019 (case No 164/409/17), dated June 16, 2020 (case No 689/26/17).

In judicial practice, there are many cases when, after acquiring ownership of real property, the user of the land plot appeals to the new owner with a claim for the dismantling of the property and the removal of obstacles to the use of the land plot. The thesis that the alienator of real estate, after committing the deed and transferring the rights to the immovable property to the acquirer, can demand from the new owner of the building that it be dismantled and moved in order to release the land plot of the alienator is absolutely untenable. Usually, disputes with such a subject are initiated by the prosecutor's office, ministries and agencies under which state enterprises are subordinated, or in the case of a change in the management bodies of enterprises.

Otherwise, the principle of the unity of the legal destiny of the land plot and the real estate objects located on it will be violated.

Thus, the fact that the new owner (real estate) does not have the rights to the land it is not a reason for dismantling or otherwise destroying the legally acquired real estate, but on the contrary, the rights to this land by virtue of the above principle should follow such an object.