When housing ceases to be yours: legal grounds for the seizure of ownerless property

In a situation where housing has been empty for a long time, is not maintained, is not legally registered or has an unsettled ownership right, it can be recognized as ownerless. In such a case, the state intervenes: it has the right to register such property, and later transfer it to the ownership of the territorial community. For many owners, this can come as a surprise, especially if the property was inherited, but not properly registered, or if, for various reasons, the person does not use the apartment or house for a long time.

The editors of IA “FACT” turned to the lawyers of the “Repeshko and Partners” Bar Association to find out under what conditions an apartment or house can be considered ownerless property, what is the procedure for recognition, and what real risks exist for the owners, heirs, or even neighbors of such objects.

Almost every day, in our practice, we encounter the irresponsibility of citizens. In the legal field, Ukrainians do not like to do everything ahead of time, within the established time frame, and even more so with an eye to the future. Therefore, only in our country can there be apartments or residential buildings that have not been properly decorated for years, but for decades. At the same time, after the owner to whom such real estate is registered, sometimes up to two or three generations of the family have already been born and died in it, and there is still no money and time for the proper registration of documents.

Soviet times were characterized by the greatest orderliness regarding real estate – then self-construction was strictly prohibited, individual residential buildings had to be no higher than one floor and no more than a specified area, but even from those times to the present, lawyers help draw up documents for houses built without any documents, by persons who have already died.

However, improperly executed real estate creates a risk of loss for the potential owner. This risk has become even greater in the conditions of military operations, when more than one million of our compatriots are abroad as refugees, while there are citizens who have not been home once since March 2022. Thus, their home remains empty all these years and someone has not yet decorated it. Among the persons with unregistered real estate are internally displaced persons within the borders of our country. By the way, precisely because of the appearance of this category of citizens, the risk of losing real estate has increased significantly.

The fact is that local communities have begun to do what they have not been able to do for many years – to identify ownerless, unregistered real estate property in order to transfer it in the future for housing for IDPs. At the same time, information is actively taken from the State Register of Rights to Immovable Property, local bureaus of technical inventory, communal services of gas and electricity supply, visual inspection, territorial community registers of registered persons.

Another category of citizens who are at risk are those who acquired property in the 90s of the last century – in the early 2000s. The fact is that on January 1, 2012, the electronic State Register of Rights to Immovable Property began its work. There is a certain stratum of the population that since that time has not taken any action with their real estate, but the documents confirming their ownership exist only in paper form, exclusively in their hands. The state may not know anything about their ownership. Although according to the previously valid legislation, every citizen who acquired real estate had to register his documents in the technical inventory bureau, but even then there were people who did not do this.

From the point of view of fraudsters, our law practice knows even such cases when fraudsters began to follow an elderly person, doing everything to gain ownership of such a person’s real estate for further sale and, accordingly, profit. And those fraudsters would not even waste time and nerves if they knew that, for example, the apartment of such a grandmother is not only owned by her, but also by her son – it was often privatized into joint joint ownership. In this case, the fraudsters have no interest, because the real estate has another co-owner for half. But the apartment was privatized back in 1996, and the information has not yet been entered into the State Register of Real Estate Rights. That is why some citizens may soon lose real estate to which they have a legal right.

In order to prevent this from happening, we strongly recommend that all those who have not issued documents for real estate – apartments, houses, land plots, because they do not have title documents, issue them properly. Everyone has their own situation and their own order of registration, so we will not touch on this topic.

Those citizens who have title documents, but they are not entered in the electronic State register of rights to immovable property, need to enter them there by taking the following actions.

Currently, there are two ways to enter information about the owner into the State Register of Rights to Real Estate: through the Diya portal or through the Centers for the Provision of Administrative Services (CSPs). To enter information through the Action, you must:

• create an electronic signature (qualified electronic signature);
• register or authorize in the citizen’s office at diia.gov.ua using an electronic signature;
• check personal data in the user profile, update them if necessary;
• fill out the online form for receiving the service;
• download documents on registered property rights to real estate by January 1, 2013 in PDF or JPEG format;
• check the generated statement and sign it with an electronic signature (qualified electronic signature).

At the same time, in order to enter information through the Central Administrative Court or a notary, it is necessary:

• passport, tax payer number, legal documents regarding the real estate object and contact the notary/registrar with these documents;
• to find out information about the right of ownership, for which the registrar/notary forms a written request to the BTI to obtain information from archival data on the right of ownership as of December 31, 2012 to the BTI on the territory of which the real estate is located and they issue a corresponding certificate. If such a bureau is liquidated, it is necessary to apply to BTI, which has become the legal successor of archival documents, or to the archival institution to which they were transferred;
• in the future, you must contact a notary/registrar with a BTI certificate and a package of documents to enter information in the register.

Usually, state registration takes up to 5 working days. After successful registration, data about the owner will appear in the State Register of Real Estate Rights and will be available for review. As soon as it becomes clear at the stage of collecting documents or their registration that not all the information is available or there are doubts about it, the owner will be asked to apply to the court with a corresponding claim for recognition of ownership of the real estate.

What can expect those citizens who ignore this recommendation? Their property can be recognized as ownerless and transferred to the balance of the territorial community in which it is located. Next, we will consider how exactly this happens. The property can be transferred to the balance of the local territorial community in cases where it is:

• ownerless thing (property) is a thing that has no owner or whose owner is unknown;
• deceased inheritance is a complex of property rights and obligations, which, in the event of the absence of heirs by will and by law, their removal from the right to inheritance, their refusal to accept the inheritance, as well as refusal to accept it, pass into the ownership of the territorial community by court decision.

According to the first part of Article 335 of the CCU, a thing without an owner or whose owner is unknown is a thing without an owner. In terms of “no owner” and “unknown owner” mean one thing – there is no person who could dispute the ownership of real estate.

Note that the mechanism by which property is transferred to the local territorial community is as follows:

1. Identification of ownerless real estate. A commission is usually created for such purposes. It is she who, through her active actions, discovers property that is not actively used by the owner. It is at this stage that the previously mentioned requests to utility services, which provide gas, water and electricity supply, take place in order to find out whether there are addresses where meters have not been replaced for a long time, readings have not been transmitted, utility services have not been paid, and in general no one has used them. In addition, members of the commission can personally visit the territories of settlements and see abandoned houses or apartments. In the case of discovery of property that looks like something the owner has not been interested in for a long time, the next stage comes into effect.
2. Recording of the fact of the presence of ownerless real estate. In case of discovery of ownerless real estate, the members of the commission inspect such property at its location and, based on the results, draw up an appropriate act. After that, the executive committee of the community sends a request to the local BTI regarding the availability of technical documentation for this object and registration of ownership.  BTI provides a certificate that prior to the registration of property ownership as of December 31, 2012, and that the technical documentation for this real estate object is a technical passport, it is produced and, if necessary, additionally requested. In the future, the local community applies to the body that carries out state registration of rights to immovable property and their encumbrances regarding the availability of information about the owner of this property in the State Register of Real Property Rights to immovable property. If there is no information about the owner, the application is made to the same body, but already with a statement regarding the registration of such property as ownerless.

1. Registration of ownerless real estate. Such an action is performed by the body that carries out state registration of rights to immovable property and their encumbrances. Refusal to be registered may occur when:

• ownerless property is not subject to accounting in accordance with the law;
• an improper person applied for registration of ownerless real estate;
• the State Register of Rights to Immovable Property contains records of the state registration of rights to immovable property, in respect of which an application for registration has been submitted;
• in the State Register of Rights to Immovable Property there are no records of the termination of ownership of immovable property in connection with the owner’s renunciation of ownership of such property (in the case when the reason for taking ownerless immovable property into account is the renunciation of the owner of immovable property from his ownership right)

After registering the property as ownerless, the commission places an announcement about this fact in the printed mass media in order to identify the owner or owners of the property. The Civil Code of Ukraine does not specify who is responsible for informing the community (society) about the registration of immovable property as ownerless. Logically, such a subject is the relevant local self-government body. After all, it is the local self-government body that is interested in acquiring the right of ownership of an ownerless immovable object. If, after posting the ad, there is an owner who applies with documents confirming his ownership of this property, questions regarding such property are removed. In the event that the owner does not appear, one year must elapse from the date of registration of the ownerless immovable property, so that after that the territorial community has the right to apply to the court for the transfer of the ownerless immovable property to communal ownership.

1. Appeal to the court with the relevant statement of claim. The case of the transfer of ownerless immovable property to the ownership of the territorial community is considered by the court with the participation of the applicant with mandatory notification of all interested parties (Article 332 of the Code of Criminal Procedure of Ukraine). There is hope that the court, as an impartial and independent body, will find out all the circumstances of the case and refuse the plaintiff to satisfy his demands.

At the same time, the court refuses to accept the application for the transfer of ownerless immovable property to the ownership of the territorial community:

• if it is not taken into account by the body that carries out the state registration of the right to immovable property;
• or if the application is submitted before the end of one year from the date of its registration.

1. Acceptance of property into communal ownership on the basis of a court decision. After the relevant decision is adopted by the court, the authorized body of local self-government prepares for the next session a draft decision on acceptance of the object of ownerless property into the communal ownership of the relevant territorial community. After taking ownerless property into communal ownership, the local self-government body applies to the subject of state registration to register the ownership right of the relevant territorial community to the specified property.

As for dead heritage, the algorithm of actions of local authorities is somewhat similar, but has its own nuances.

The transfer of deceased inheritance to the territorial community is also carried out on the basis of a court decision. Before the court decision enters into force, the property is described and protected in accordance with the law. Property protection measures are taken by the notary at the place of inheritance opening, and in settlements where there is no notary, by the authorized official of the relevant local self-government body. Thus, the first step regarding such property is also its detection. But such property is usually discovered when the owner of the property is a single person, dies alone in his home, and the neighbors notify the relevant authorities that the owner of the property has died, this fact is of no interest to anyone, and needs to be hidden. This is how real estate appears in the field of vision of the local territorial community.

An application for recognition of the inheritance as dead is submitted to the court only after 1 year has passed since the opening of the inheritance and is considered in the order of a separate proceeding. The fact of the testator’s death must be confirmed by an appropriate death certificate (a record of the State Register of Civil Service) or a court decision declaring the person deceased. The case of recognizing the inheritance as dead is considered by the court with the mandatory participation of the applicant and with the mandatory notification of all interested parties.

The last stage is also similar to the case of ownerless property. After the court adopts the relevant decision, the authorized body of local self-government prepares for the next session a draft decision on acceptance of the object of deceased property into the communal property of the relevant territorial community.

After accepting the defunct property into communal ownership, the local self-government body applies to the subject of state registration to register the ownership right of the relevant territorial community to the specified property. It is worth noting that the transfer of defunct property into communal ownership gives the territorial community the right to fully dispose of it, taking into account the needs of the community. According to the law, such property may, depending on its purpose, be transferred for use by other persons, leased, alienated (sold), etc.

Therefore, it is not easy to deprive a person of his property rights, but it is quite possible. Especially when there are no legal ties to real estate and you are not interested in its fate.