On October 25, 2017, at 11:00, the press center of the Donetsk News Agency hosted a briefing by Lilia Reznikova – the Deputy Chairman of the Supreme Court, the Head of the Civil Chamber of the Supreme Court of the Donetsk People's Republic on Features of civil proceedings on eviction from a dwelling, and on recognition of persons to have lost the right to use dwelling premises.
During the briefing, there were also summed up the results of the work of the courts of general jurisdiction and the Civil Chamber of the Supreme Court of the Donetsk People's Republic for the period from 01/01/2017 to 30/09/2017.
As of September 30, 2017, there were 21,858 civil materials pending in courts of general jurisdiction, of which 20,210 materials have been already considered, of which 1,506 materials were returned to plaintiffs (applicants).
Moreover, during the stated period in courts of general jurisdiction there have also been 18,772 civil cases pending, of which 14,144 civil cases have already been considered.
Such a large number of appeals to the courts for the protection of violated rights testifies to the growing role of the courts of the Donetsk People's Republic, and faith in justice.
At the same time, the stated number of delivered judgments testifies to a heavy burden on a relatively small contingent of judges, which entails reproaches on part of citizens because of untimely consideration of lawsuits, and sometimes mistakes in the application of substantive and procedural legislation.
Persons who do not agree with a court decision delivered by a court of general jurisdiction are entitled to appeal this decision under cassational procedure.
For the indicated period, in the Supreme Court of the Donetsk People's Republic, under cassational procedure, the Civil Chamber of the Supreme Court registered 1,590 cases, of which 1,401 cases have already been considered.
I would like to focus on the appeals of citizens related to eviction, recognition of citizens to have lost the right to use dwelling premises, to clarify what nuances are taken into account when considering this category of cases.
Often citizens in view of their legal ignorance, solving the issue of moving certain persons into a dwelling, the owner or tenant of which they are, do not know the consequences of such actions and subsequently they are forced to apply to courts for the protection of their, as they often believe, violated rights.
As a result, courts have to deal with appeals when spouse of the owner or tenant, or son (daughter) in law was moved into an apartment as a family member. Later, when the family broke up, the question arises as to how to evict the said persons.
Courts are also applied by persons who have purchased a dwelling in which the former owner or his family members was still living.
And many citizens left to live in another locality.
It should be born in mind that Part 1 of Art. 33 of the Constitution of the DPR guarantees the right of everyone to shelter. No one can be illegally deprived of dwelling.
One way to protect your violated right is to apply to court with a claim for eviction without the provision of another dwelling in accordance with Art. 116 of the Ukrainian Housing Code.
This article points to the following grounds for the eviction of an individual without the provision of another dwelling:
a) systematic destruction or damage of a dwelling. The guilt of these persons is intentional or appears to be gross negligence. The tenant is responsible for the actions of juvenile and underage children. Under ‘systematic’ we mean the commission of two or more such offenses;
b) its misuse. This is the use of a dwelling not for living, but for accommodating a workshop, a warehouse, ancillary facilities, for animals maintenance, etc.;
c) systematic violation of the rules of a hostel, making it impossible for others to live with them in the same apartment or in the same house.
It should be noted that, in all three cases, the offender should be subjected to preventive measures used by courts, prosecutors, internal affairs bodies, administrative commissions of executive committees, as well as measures of public influence adopted at a meeting of tenants of a house or members of a housing cooperative, labor collectives and other public organizations at the place of work or residence of the defendant (regardless of direct instructions on the possible eviction).
It is worth paying attention to the fact that the rules of Art. 116 of the Housing Code concerning eviction on the ground of inability to live together do not apply to participants of joint ownership of a dwelling. In such cases, the protection of the rights of a participant in joint ownership may be exercised in other ways provided for by the Civil Code.
As for persons registered but not residing in a dwelling, according to the current legislation, viz. Art. 71 of the Ukrainian Housing Code, a dwelling is reserved after a temporarily absent tenant or a member of his family as one of the ways to protect the housing rights of individuals.
By "reserving a dwelling" one should understand the protection by law of the right to a living space in a dwelling after temporarily absent tenants and members of their families.
The reasons for the absence of a person in a dwelling do not matter, if such absence lasted no more than 6 months. However, if this time is exceeded, a court should find out the reasons for such absence, and validity of such reasons.
In accordance with the stated rule of the Ukrainian Housing Code, a court finds out the reasons for the defendant’s absence in excess of the statutory deadlines in the disputed residential premises. In the case of the importance of such reasons for absence (stay on a business trip, stay with persons in need of care, absence due to misconduct by other family members, etc.), a court may extend the missed deadline.
When an absentee returns to a dwelling with the consent of family members, he or she cannot be considered to have lost the right to a dwelling.
If he or she moves into living quarters against the will of family members and has been absent for the time exceeding the established periods without valid reasons, then a court has the right to recognize him or her as having lost the right to a dwelling.
It should also be noted that the existence of a court decision on the right of a citizen to use a dwelling is not an obstacle to the consideration and satisfaction of a claim for recognizing him or her to have lost this right on the grounds that after the entry of the decision into legal force or after its execution, he or she was absent for more than six months, including those cases when the time for execution of a decision has not expired.
The fact of a temporary absence of a person and related legal consequences should be separated from the fact of a permanent absence of a person in a dwelling in connection with a tenant and his family members’ leaving for permanent residence in another locality or another dwelling in the same locality (Art. 107 of the Housing Code).
When leaving for a permanent place of residence in another dwelling, a person loses the right to use a dwelling regardless of the term of leaving.
Preservation of the right to use a dwelling in the case of a temporary absence of an individual is also provided for in relation to a private housing fund. According to Art. 405 of the Ukrainian Civil Code, members of the owner’s family living with him have the right to use this dwelling in accordance with the law.
Living space, which they have the right to occupy, is determined by its owner.
A member of the owner's family loses the right to use this dwelling in case of absence of a family member for more than one year without valid reasons, unless otherwise stipulated by an agreement between him and the owner of the dwelling or by the law.
The right to use a dwelling, by virtue of Art. 405 of the Ukrainian Civil Code, is retained not only after family members (including former ones) of the owner of a dwelling, but may also be retained by a member of his family in the case of a change of the owner.
Thus, the unconditional eviction of such persons only as a result of the fact that the ownership of the dwelling has passed to another person, is illegal and does not correspond to the nature of the disputable legal relations.
Article 156 of the Ukrainian Housing Code grants the right to the members of the family of the owner of a residential house (apartment) living with him in the house (apartment), that he has the right to use this premise on an equal footing with the owner of the house (apartment), if at their moving in there was no other agreement on the order of use of this dwelling. Termination of family relations with the owner of the house (apartment) does not deprive them of the right to use the dwelling occupied.
The fact that a person is the owner of a dwelling and, consequently, has the legally protected right to own, use and dispose of his property, in itself, cannot constitute grounds for eviction and de-registration of other persons legally residing there.
There are appeals to the court with claim eviction without the provision of another dwelling to persons systematically destroying or damaging a dwelling.
It should be noted that courts of the Donetsk People's Republic, when considering cases of this category, basically apply the material law correctly and deliver legal judgments.
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