En
Submit your application

SCU has figured out the nuances of applying measures to secure a claim

The owner cannot be limited in the right to use his property due to the existence of a claim for the recognition of the lease agreement regarding this property as invalid! This decision was made by the Supreme Court of Ukraine on November 21, 2018 following the results of the proceedings in case No. 752/6255/18.

Previously! The tenant applied to the court with a claim for the recognition of the lease agreement as invalid on the grounds provided for by the provisions of Articles 229 and 230 of the Civil Code of Ukraine. In addition, he asked to recover from the landlord the cost of repairs, rent payments and non-pecuniary damage.

A little later, the applicant also petitioned the court to secure the claim, he asked, firstly, to arrest the premises he rented and, secondly, to prohibit the landlord from using and disposing of the disputed object until the completion of the court hearing or until the expiration of the lease agreement.

The court of first instance and the appeal court satisfied the claim of the tenant:

  • the premises were seized;
  • the owner was forbidden to use and dispose of the property until the event (term) indicated above.

The courts motivated the decision by the fact that if this is not done, it will become more difficult or impossible to recover if a decision is made in favor of the plaintiff.

The owner of the property considered the decision unlawful!

“He appealed it to the Supreme Court of Ukraine! He pointed out that the existence of a claim for the recognition of the contract as invalid cannot be a sufficient basis for the application of such measures. There is a fact of violation of the norms of procedural law, since the courts of previous instances did not properly motivate their conclusion regarding the existence of grounds for applying measures to secure the claim.”

The Supreme Court of Ukraine satisfied the complaint, finding out the following…

In the analyzed case, the courts of previous instances decided on the advisability of applying measures to secure a claim (seizure) with restriction of use, based on the general norms of procedural legislation, in fact, unreasonably assuming the possibility of non-execution of a possible court decision, they:

  •  did not assess the validity of the applicant’s arguments;
  •  did not find out the dimensions of the type of collateral;
  •  did not assess the equivalence of security measures;
  •  did not justify the need for their application.

It can be said that the arrest and ban were imposed and applied at the request of the applicant!

Also, the courts, for unknown reasons, did not answer the question of how, in favor of the plaintiff, the probable decision to invalidate the lease agreement will affect the rights and obligations of the landlord as an owner.

The Supreme Court of Ukraine noted the obviousness of the fact that the existence of a claim regarding a contractual obligation cannot be a reason to satisfy the requirement to seize property and to restrict its disposal by the full owner.

The original judgment would have been fair if the title to the property had been disputed, not the validity of the lease!

The case was not considered on the merits, it is obvious that the decision was made on the basis of a potential assumption, and the legal analysis of the contract, which was supposed to clarify the grounds for recognizing it as invalid / valid, was never carried out by the court!

27.02.2019

28

YOU MAY BE INTERESTED IN
SCU. Jurisdiction of corporate disputes between JSC participants

The Ukrainian Supreme Court answered the question, in which courts are considered disputes arising from corporate relations between current and retired members of companies, regarding invalidation of decisions of general meetings, amendments to statutes, as well as in which courts the termination of contracts for the sale and purchase of parts in authorized capital and […]

Supreme Court of Ukraine on the interpretation of treaties on the basis of contra proferentem

The Ukrainian Supreme Court “remembered” about the “contra proferentem” principle! By the decision in case No. 756/1381/17-c of 03/25/2020, he consolidated the legal conclusion based on this doctrine. It reads: “If the interpretation of the content of a written agreement by means of general methods is impossible, the contra proferentem interpretation is used – the […]

The Supreme Court of Ukraine approved the binding nature of the treaty! Conclusion on case No. 456/2946/17

Initially! The legal entity filed a lawsuit against the individual in court, demanding the fulfillment of the obligation under the terms of the preliminary tripartite agreement with the transfer of advance payments for the further purchase of the apartment by the defendant. The claims were motivated by the fact that the applicant fulfilled his obligations […]

Supreme Court of Ukraine on invalidation of the terminated agreement

Departure from existing legal positions by replacing them with new conclusions in the formation of law enforcement practice by the Supreme Court of Ukraine is a standard procedure! Thus, on November 27, 2019, the BC-SCU published a legal opinion in case No. 905/1227/17, by which it departed from the 2015 conclusion in case No. 918/144/15. […]

Supreme Court of Ukraine stopped family showdown over a shopping pavilion

By decision in case No. 202/3788 / 18 of 04.08.2020, the Supreme Court of Ukraine stopped the family showdown regarding the shopping pavilion, which the spouses had been sharing for several years. The court determined that the trade tent is movable property, transactions in respect of which are not subject to state registration, but it […]

Ukrainian Supreme Court prevented the bank from recovering the shortage from the cash collector

On October 23, 2019, the Supreme Court of Ukraine in case No. 522/6582/16-c published a legal conclusion regarding the wrongness of the bank, which was collecting funds to pay off the loan debt under a non-existent loan agreement. Details of the proceedings A citizen-former employee of the bank went to court with a claim against […]