Seizure of property is one of the most acute legal problems faced by both individuals and legal entities. It affects not only economic interests, but also deeply affects the lives of citizens, limiting their freedom to manage their property. It is a complex process that requires not only compliance with the procedure, but also in-depth knowledge of the law, legal reasoning and professional support. In today’s world, where the judicial system sometimes becomes an arena of conflicts that go far beyond purely legal issues, it is important to understand all aspects of this process.
Lawyers of the “Repeshko and Partners” Bar Association explain what it means to cancel a property seizure, what legal grounds exist for this, and how to act if your rights have been violated. Their comments will help you understand the subtleties of the procedure and understand how to protect yourself from possible risks.
The legal context of seizure of property covers not only the grounds for its imposition, but also the mechanisms for removing such restrictions. This issue becomes especially relevant in conditions of economic instability, when arrests are often used as a way to secure lawsuits, resolve debt disputes, or even as a pressure tool.
Let’s give one example from our practice. One woman, who had been in Europe for the last couple of years due to military actions, returned to her hometown for a couple of weeks to sell her own apartment. She had been divorced for a long time, she owed nothing to anyone, the minor children in the apartment were not registered, so it would seem that the only thing was to quickly find a buyer and at the same time sell the property as much as possible for the highest price. Everything was going great – a buyer was found quickly, and the offered amount satisfied the woman, but it didn’t happen as expected.
While checking the documents before concluding the agreement, the private notary informed the woman of the shocking news – the apartment that should be the subject of the agreement is under arrest, and therefore there can be no agreement until the issue of lifting the arrest is resolved. To say that the woman had a heart attack is an understatement. After she came to her senses, she had only one question – where did the arrest for the apartment come from?!
The State Register of Property Rights to Immovable Property knows a lot, it also knew about the seizure, and therefore issued with knowledge of the case – the seizure was imposed on the basis of the decision of one district court from … 2009! The year is 2024. And then the woman began to remember that after the divorce in 2009, her ex-husband filed a lawsuit against her, with which he wanted to get ownership of ½ part of the apartment that was purchased during the marriage and which was currently under arrest and was put up for sale. In order to secure the claims during the court’s consideration of the case, the latter issued a decree on the seizure of the disputed property – the apartment. The ex-husband’s claims regarding the apartment were refused, the apartment remained in full ownership of the woman, but with the arrest.
Usually, after the end of the court case, many people forget to resolve the issue of canceling the security of the claim, especially if the security of the claim took place at the request of the opposite party. The fact is that the court’s decision to secure the claim is an executive document and is subject to immediate execution from the day of its decision, regardless of its appeal and the opening of executive proceedings. Depending on the type of measures taken, a copy of the decision on securing the claim is sent by the court simultaneously with the referral to the applicant for immediate execution to all persons who are affected by the measures to secure the claim and whom the court can identify, as well as to relevant state and other authorities for taking appropriate measures.
Therefore, after all court instances on the case have been completed and the final decision has entered into force, the owner of the property, if there was a claim security, must submit a petition to cancel the claim security. This is exactly what our client had to do, but fifteen years after the end of the court case, it is a good thing that the same case has been preserved in the court archive, and even the judge who considered it at the time is still working today.
It must be remembered that a court decision to seize real estate in connection with the proceedings and as security for a claim is canceled by the same court that issued such a decision. At the same time, it does not matter when the case was considered – six months ago or twenty years ago. In accordance with the norms of the Civil Procedure Code, the court can cancel the measures to ensure the claim at the reasoned request of the participant in the case.
The petition is submitted to the court in writing, it states the maximum known information:
- the number of the court case, the name of the judge who issued the decision,
- the names of the parties, their registered addresses and actual places of residence, tax identification numbers, contact telephone numbers,
- briefly the essence of the case, the results of its consideration,
- these resolutions by which the provision of the claim and the legal justification were made.
A motion to cancel measures to secure a claim is considered in a court session no later than five days from the date of its receipt in court. This is stated in the law, but in practice it can be a little longer or even not a little – it depends on the workload of the court and the speed of searching for a case in the court archive.
It is not necessary to pay a court fee for such a petition, but a maximum of copies of the following documents must be added to the petition:
- your passport and identification code,
- an extract from the register of immovable property, which shows the existence of a seizure,
- copies of documents establishing the right to real estate,
- decisions and resolutions on the case as they have been preserved.
Based on the results of consideration of the motion to cancel the measures taken by the court, a court decision is issued on the cancellation of the measures taken by the court, or the refusal to cancel the claim security can be appealed, but in such a case as we are considering, usually no one does it, because doesn’t make sense.
Refusal to cancel the security of a claim does not prevent a repeated application with the same request when new circumstances arise that justify the need to cancel the security of a claim. However, after receiving the court decision, it still needs to be implemented – it must be taken to the state registrar at the Administrative Services Center, which will delete the seizure record from the State Register of Property Rights.
A copy of the decision on the cancellation of measures to secure a claim is sent to the applicant, all persons affected by measures to secure a claim and whom the court can identify, as well as to state and other bodies that should have and (or) implemented the decision to secure a claim, immediately after such a decision enters into force. , for them to take appropriate actions regarding the cancellation of measures to ensure the claim.
This is, so to speak, a light version of the development of events. Our legal practice knows much worse situations. A young energetic man decided to repair cars. He purchased a plot of land with buildings, registered as an entrepreneur and worked for himself for almost twenty years, until he needed something in the same register of real estate. The entrepreneur found out that the district state executive service of the district imposed a seizure on the buildings belonging to him even before he became their owner. Moreover, the property owner at that time was a person who not only never owned this property, but whom no one had ever heard of.
Another man found himself in an almost similar situation, who decided to sell his ½ part of the house and the plot of land – from the notary, who checked the documents before the deal, the man found out about the seizure of the house, imposed by the state executor in the days of almost his youth. So the man remembered that he has a child who is now an adult, but once was not, and during those times the child’s mother demanded alimony from him. He didn’t really want to pay, but he had to according to the court’s decision. The child has long since grown up, but the house arrest remains.
In both situations, when the seizure of property was imposed by the state executive, the algorithm of actions is the same. First of all, you need to contact the department of the state executive service that imposed the arrest with a statement about the removal of the arrest or with a complaint about the actions of the executor before the arrest. But here there are options depending on how long ago the arrest was made. The application should substantiate the illegality of the imposed arrest or indicate the existence of legal grounds for its removal, adding supporting documents. According to the submitted application, the executor can remove the imposed arrest, or refuse, indicating the reasons in a written response to the appeal. In the event of a refusal to satisfy a complaint against the executor’s decision to seize property, or if such an answer is not received at all, it will be necessary to file a claim with the court.
For arrests that were imposed long ago by the executor, the trick is that according to p. 9.9 of the order of the Ministry of Justice of Ukraine No. 2392/5 dated 08.12.2009 “On the procedure for working with documents in the bodies of the state executive service” – the term of storage of completed executive proceedings transferred to storage is three years, for decisions in administrative cases one year. Therefore, if the executive case is completed and already destroyed due to the expiration of the storage period, then there is no other way to remove the arrest than filing a lawsuit about it with the court.
The following must be added to the statement of claim:
- a receipt for the payment of a court fee in the amount of 0.4 of the subsistence minimum per able-bodied person (as of 2024 – UAH 1,211.20);
- a copy of the applicant’s passport and identification code;
- a copy of documents to confirm the circumstances regarding the seizure of property by the executor;
- evidence of the application to the enforcement service and their response about the current situation regarding the enforcement proceedings for which the arrest was imposed;
- information from the automated system of enforcement proceedings about the absence of open enforcement proceedings against the claimant (property owner);
- copies of documents proving the existence of grounds for lifting the arrest from the property.
- other documents justifying the right to remove the arrest or confirming the actions of the executor in violation of the law.
But the nuance of consideration of the case in the procedure of legal proceedings is that it is not just not fast, but very not fast. Such a case can be considered for a minimum of several months, and a maximum of several years, it all depends on the specific circumstances of the case, the workload of the judge, the appearance of the defendant (defendants) in the case for trial and, in general, their reaction to the statement of claim.
It should be noted that not only real estate owners face similar problems. There are rare cases when the attachment passes into the inheritance along with the property after the death of the testator. At the same time, sometimes the testator deliberately does not want to deal with the removal of the lien, and sometimes he does not even know about its existence. In this case, the heirs submit to the notary an application for acceptance of the inheritance and that’s it, that’s it. In the future, the notary will issue a decision on the refusal to perform a notarial act, since he will not be able to issue a certificate of the right to inheritance if there is a seizure. In such a case, the heirs also have only one way out – with a lawsuit to the court for the cancellation of the seizure and recognition of ownership of real estate in the order of inheritance.
As you can see, sometimes we are overtaken by situations and problems that could have been avoided. Therefore, our advice is to do everything in a timely manner! What today can be done quickly and for free with one petition, tomorrow may turn into an indefinite legal delay and considerable costs. Legislation changes, cases disappear from the archive, courts change jurisdiction in connection with military actions, and many other things can happen in life. Just in case, if you are the owner of real estate and you can get a certificate from the real estate register yourself through the Diya portal – do it, this operation costs only 40 hryvnias. If you are unable to do so yourself, contact the nearest notary and tell them that you intend to sell the property – let him check the register. Look carefully to see if there is a lien on your real estate. The one who does everything ahead of time always wins.
