The Law firm «FOX» has repeatedly paid attention to a rather simple, but burning question about the interconnection of the residence registration and property rights.
We consider that such a question does not require professional legal intervention. Therefore, we have decided to provide a brief consultation on this problem.
To provide an easy perception of the information, we have decided to include real-life examples into the consultation.
Let us imagine a situation when a person gets an apartment (buys, inherits or any other related options), and registers there his/her residence. His/her right of ownership (possession, use and disposal) of the apartment is enshrined by the Article 41 of the Constitution, Article 383 of the Civil Code and Article 150 of the Housing Code of Ukraine.
Afterwards this person meets another person – as an example, the soulmate.
Sometime after that they register their marriage in the Civil Registry and move to live to the mentioned apartment.
For the purpose of living as a family, the other spouse expresses a desire to register his/her residence in the apartment that belongs to his/her wife/husband on the right of private property.
At this instance the statistics of divorces comes to mind.
It is possible that in the case of divorce the former husband/wife (the one who does not own the apartment) will file claims about rights on the apartment in which he/she has just registered his/her residence.
There is a question, if he/she has such a right.
In accordance with the paragraph 1 of the Article 57 of the Family Code of Ukraine, all property that was acquired by one of the spouses before the marriage is a private property of this spouse.
In this case, the apartment was acquired by the owner before the marriage, accordingly it remains in his/her private property, unless otherwise is provided by the marriage contract.
However, for good reason this property may be held by a court as a common property of spouses, if during the marriage the value of the property significantly increases due to the common labour or explicit costs for example capital repair, remodeling, etc. (under the Article 62 of the Family Code).
Although, the mentioned aspect may have legal consequences only after being proved in court.
The question of the cohabitation of the family members is regulated by the Articles 383, 401-406 of the Civil Code of Ukraine, as well as by the provisions of the Articles 64, 65, 150 and 156 of the Housing Code of Ukraine. In accordance with the mentioned provisions of the law the members of the owner's family who live with the owner (who are actually registered in this apartment) have a right to use his/her apartment (rights of servitude).
Thus, under the provisions of the Article 403 of the Civil Code of Ukraine, the servitude does not deprive the owner of the property of the rights to possess, use and dispose of the property and does not provide the property right to his/her family members.
However you should pay attention to the fact that the right to use the owner’s property for his/her family members appears only after they receive the right to live in the apartment by means of the residence registration on a basis of the servitude agreements, lease or by means of the submission by the owner the notarially certified application to the Department of the Immigration where he/she lives (previous name OVIR).
In this case, it is necessary to pay attention to the notion of the family members (see the following article Family Member) and some of the specific rights of the family members.
Thus, in view of the fact that our question concerns housing legislation, we are obliged to use the interpretation of the concept of the «family member» as it is defined in the Article 64 of the Housing Code of Ukraine, that is as follows «the members of the family of the owner may be wife, children and parents, as well as others, who live together with him/her and run a joint household».
Prior to the residence registration of the other person (family member), the aforementioned interpretation has no special influence on the situation, with one exception, when the registration of the owner’s minor children in his/her apartment does not require the owner’s permission (the Article 156 of the Housing Code of Ukraine).
Therefore, if the owner of the apartment is a parent and refuses to settle in the apartment his/her minor child, then such settlement may be performed by the competent public authorities. However, this aspect is the only one that is worth to worry about before the moment of the registration of the owner's family members in his/her apartment. All other particular moments appear after their registration.
What is essentially the residence registration? The residence registration in accordance with the Article 3 of the Law of Ukraine "On a Free Movement and a Free Choice of the Residence" is only the insertion to the Unified demographic Register of the State of the information about the residence with the indication of an exact address which is a forwarding address and an official correspondence address.
It may be concluded from this definition that the residence registration of the wife/husband in the apartment that belongs to a spouse, does not generate the right of ownership of other spouse.
However, starting from this moment the pitfalls of our legislation appear.
We stumble on them from the moment of definition of the rights of the family members, who are registered in the owner’s apartment.
At this moment the most interesting facts appear.
In accordance with the Articles 63 and 104 of the Housing Code of Ukraine, the registered family members have the right to demand, including through the courts, the assigning a separate part of the apartment for the residence or signing a separate lease contract (which indirectly may involve the division of the property).
Under the provisions of the paragraph 2 of the Article 156 and Article 161 of the Housing Code, the family members have the right under the consent of the owner of the apartment or by the court order to quarter in the apartment the other family members: parents-in-law, their minor children, who may not be the children of the owner of the apartment, and other relatives, to whom may be pinned a label of "family members".
Moreover, the registered family members have the right to quarter their minor children, who do not even have any kin relations with the owner of the apartment, into the apartment without permission of the owner of the apartment.
The above mentioned rules of the ownership are efficient, despite the contrary to the Constitution and the Civil Code of Ukraine and create a lot of difficulties in the relations between the owner of the apartment and his/her family.
Whereas, in accordance with the provisions of the Article 406 of the Civil Code of Ukraine, the servitude terminates in case of the termination of the circumstances which were the basis for its establishment. Thus, in case of the termination of family relationships or cancellation of the residence registration, simultaneously the servitude is terminated, which is the reason for an eviction of the mentioned persons (who are not the owners of the apartment).
Under the provisions of "The Order of the Residence Registration and the Place of Stay of Individuals in Ukraine and Samples of Relevant Documents" approved by the Order of the Ministry of Internal Affairs of Ukraine dated November 22, 2012, No 1077, the basis for the de-registration is one of the following documents: a statement of the de-registration, which is submitted either personally or through a representative; the court decision; a certificate of death, as well as other documents that indicate the grounds for the termination of the right to use the dwelling (rental agreement, lease, etc.).
However, according to the provisions of the Article 9 of the Housing Code, no one may be evicted from the premises which he/she occupies, or be restricted in the right to use such living quarters.
Moreover, according to the provisions of the Article 157 of the Housing Code of Ukraine if the member of the family refuses to move out, his/her eviction shall be carried out only through the courts.
In turn, the courts will necessarily take into account (though, on our mind, it is illegal) the provisions of the above mentioned Article 9 of the Housing Code of Ukraine and the paragraph 3 of the Article 64 and paragraph 4 of the Article 156 of the Housing Code of Ukraine under which a person who ceased to be the member of the family (for example, after a divorce), but continues living in an apartment, does not lose the right to use the apartment and has equal rights to use the apartment along with the owner.
At the same time, under the provisions of the paragraph 1 of the Article 116 of the Housing Code of Ukraine, the eviction of former members of the family against their will, is possible only if they have violated moral conditions of cohabitation or damaged the apartment. Despite the contravention of the mentioned provisions to the right of property, the court does not always render such provisions in favor of the owner of the apartment.
Some difficulties also arise in the case of the child’s residence registration. Whereas, in accordance with the provisions of the Article 12 of the Ukrainian Law "On the Basis of Social Protection of Homeless People and Street Children", for the implementation of any agreements (sale or similar), concerning the apartment in which the residence of the child is registered, the owner is obliged to approve such an agreement with the guardianship and trusteeship bodies.
In view of the foregoing it may be concluded that the residence registration of one of the spouses in the apartment that belongs to other spouse on the right of private property does not fundamentally affect the right of property of the owner of the apartment, but complicates property right implementation, especially in case of divorce (if the former spouse refuses to vacate the occupied premises), and if the minor children are registered in the apartment.
That is for you to decide!
Managing Partner of the Law Firm "FOX" Vladimir Marinich