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Захист прав власності

Illegal actions of raiders to alienate property or business are always well-planned and well-thought-out actions because they are carried out by people who are engaged in this at a professional level.

You can only protect yourself from such illegal actions by raiders if you receive proper legal support. Your lawyer or lawyer should always be one step ahead of the fraudsters, using their experience and knowledge to the maximum, and a creative approach to the case. This is the only way you can count on the fact that the raider seizure of business or property will not happen.

Unfortunately, raiding activity in Ukraine is already quite a long-standing trade, which complicates the protection of property rights. During this time, the scammers managed to develop a large number of schemes that help them seize other people’s business or real estate with impunity. It is important to understand that the greater the ambitions of fraudsters, the more preparatory work they carry out, and the more difficult it is to resist them. Raiders can target any property, including intellectual property.

Events, when attacked by raiders, develop extremely rapidly. That is why it is so important to act correctly in such a situation. As practice shows, most full-time lawyers do not have enough experience to prevent the seizure of property and provide quality legal services. As a result, the raiders seize property, and it is almost impossible to return it in the future.

The most common types of raiding in Ukraine

  1. Change of ownership in the company and seizure of corporate rights (occurs by registering the purchase and sale of shares in the company using fictitious documents through a corrupt notary). Most often, this leads to the fact that the raiders get full access to the company’s accounts, its property and rights to claim debts.
  2. Repurchase of the right to claim the debt and re-register the subject of the mortgage on yourself. This leads to the fact that the raiders receive collateral at the residual minimum price.

This area of work of a real estate lawyer from Kasyanenko & Partners Law Company, as protection of the client’s interests in court and outside the courtroom, is one of the most popular at the moment.

The sharp crisis, the collapse of the economy and the collapse of banking institutions-all this has caused an increase in the number of fraudsters in Ukraine who want to get easy money by performing illegal actions in relation to the property rights of other citizens.

Recent significant changes in procedural legislation have led to an increasing number of cases where fraudsters have received mortgage property taken from debtors. This was due to the presence of a special clause in the mortgage agreement and the features of the Law of Ukraine On mortgage Article 37. Over the past three years, Kasyanenko & Partners Law Company has successfully supervised and provided legal support to its clients in more than two hundred cases involving the return of property rights.

Such rampant fraudsters were also affected by changes in the Law of Ukraine on enforcement proceedings and the fact of the appearance of private performers. Thus, in our country, more than forty thousand objects belonging to the category of collateral were illegally alienated.

Kasyanenko & Partners Law Company specialists speak about an increase in demand for legal services related to illegal deprivation of property rights to real estate.

That is why many people are interested in answers to questions such as:

  • How to protect yourself from raider attacks?
  • What to do when fraudsters illegally reissued property rights?
  • What to do when the ownership of the property was reissued without your consent.
  • What to do when fraudsters forged documents for property or business?

Based on these issues, we provide a number of services:

  • the return of illegally expropriated property;
  • cancellation of third-party ownership rights and restoration of corresponding entries in the unified state register;
  • challenging the conduct of illegal auctions related to the alienated property of the client;
  • challenging fictitious sales transactions based on forged documents in court;
  • bringing fraudsters to criminal responsibility;
  • protection of the client’s real estate from any illegal actions.

Our company is also engaged in protecting the property rights of clients through filing claims in court:

  • regarding the recognition of ownership of the movable or immovable property;
  • regarding the recognition of the actions of the State Registrar as illegal, including the actions of a notary (guided by the Law On mortgage Article 37 or on the basis of a mortgage clause);
  • regarding the recognition of the contract of alienation is invalid;
  • regarding the prohibition of illegal actions for the alienation of property;
  • regarding the implementation of necessary actions on the part of state bodies that would help prevent the illegal alienation of property or business;
  • regarding the return of property from illegal possession;
  • regarding the return of property from unjustified possession;
  • regarding compensation for material and moral damage caused by property rights violation;
  • regarding the recognition of the legal act of the state body as invalid and compensation for the damage caused by it to the client;
  • regarding the use of property;
  • regarding the exclusion of property from the inventory;
  • regarding the transfer of ownership of property in connection with the conclusion of a contract of sale, etc.

The essence of the concept of the legal protection of property

The protection of property rights should include a set of legal means available from the point of view of the legislation of Ukraine, which is not only a guarantee for the normal use of property but also an effective mechanism for restoring property rights if they were violated by illegal methods. In other words, such protection is used as a guarantee for ensuring property relations, as well as for removing various legal obstacles, compensating for damages, etc.

The legal aspect of property rights protection (criminal or administrative) is primarily aimed at punishing the violator for an illegal act committed against the property rights of another person since such actions (defined by law) cannot go unpunished. At the same time, such protection mechanisms also aim to restore property rights, since the violation of these rights has affected the property status of the rights holder.

Lawyer’s services for the protection of property rights provided by Kasyanenko & Partners Law Company:

We help clients to protect their interests in court related to cases about:

  • the recognition of the right of ownership of the property;
  • seizure of property and related activities of Executive bodies;
  • the return of ownership rights from illegal possession (the property was seized illegally);
  • division of common property, allocation of shares in it;
  • recognition of agreements relating to the alienation of property as illegal;
  • recognition of the acts of the Executive bodies, local authorities, etc., those which are not subject to performance;
  • collateral and actions related to it;
  • confiscation of property and related actions of authorized bodies;
  • transfer of the buyer’s rights and obligations under the contractual relationship in the property purchase and sale transaction, if the client’s rights regarding the share in the property were violated illegally;
  • transfer of property to private ownership, even if the property is subject to alienation or seizure;
  • recognition of agreements on the alienation of real estate, such as those that are invalid (for example, the case of restoring the rights of the employer regarding the acquisition of premises of a public housing complex in the property);
  • compensation for damage caused by violation of property rights to real estate (including deferred or non-received income for the use of this property);
  • exclusion of property from the inventory.

Paying attention to the nature of encroachments on property rights, legal and civil protection methods are often considered.

Property protection methods that are designed to guarantee the security of property rights from illegal encroachment on them by third parties. issues related to collateral property.

Property claims should include:

  • claims with claims of the owner without property rights to claim property from illegal possession of a third party (vindication);
  • claims of the owner of the property regarding the elimination of violations of property rights that are not related to the ownership itself (negatory);
  • a claim for recognition of property rights.
  • to the law of obligations claims must include:
  • claims for damages resulting from incomplete fulfillment or non-fulfillment of contractual terms;
  • claims for claiming property that was previously transferred to a third party;
  • claims for the return of property that was acquired on a groundless basis, etc.
  • such methods of protection apply not only to persons who are in direct possession of the property but also to persons who own property on the right to manage or conduct business. Such persons should also include owners of property under a pledge agreement.

Vindication claim and its features

A vindication claim should be considered as one of the main methods of protecting property rights. In the thematic literature on legal activity, such a claim is most often considered as a claim of a person who is not the owner to a third party to return from its possession. This means of protecting their rights appeared in the days of Ancient Rome, and was known as action rei vindicatio.

Based on the above, the parties to such a claim include a person who is deprived of the ability to own and dispose of certain property, and the illegal actual owner. The subject of the claim, in turn, is the property that was removed from the possession of the originator of the vindication claim.

  1. The claim in question can only relate to certain items of individual use. That is, it is impossible to return to your property a thing that has generic characteristics: a ton of grain, 20 liters of engine oil, etc. However, as legal practice shows, there are no restrictions for considering a thing that has generic characteristics as the subject of a vindication claim. This is possible only if this thing can be identified – that is, to distinguish such property from the total mass of things with the same characteristics.
  2. Such a claim can only be brought in respect of the thing owned by the plaintiff, but it is in the defendant’s possession at the time of filing the claim. Thus, in a situation where a thing was pledged, the defendant in such a claim will be the pledgee, not the lessor (he will participate in the trial as a third party, but not the defendant).
  3. You can only claim property for a vindication claim if it is in the possession of the defendant illegally. In other words, if the possession of someone else’s property is legal, then it is impossible to claim it with such a claim. However, this does not apply to situations where the ownership grounds change or are subject to change.
  4. You can claim your property back for this claim only when the property has been preserved in nature. This fact is also confirmed by the fact that the vindication claim itself is a demand for the restoration of the ownership rights of the property that belongs to it legally. This means that the property cannot be replaced or exchanged. It also means that somehow redesigned the property is not subject to return under the filing of the vindicatory claim (but shall be returned on the claim of a binding nature, by which to obtain redress).

A defendant in a vindication claim (an illegal owner of property rights) can be either conscientious or dishonest. In an unfair defendant, the plaintiff always has the right to demand the return of the rights to his property. An unfair acquirer (defendant) can be considered a person who independently and illegally took possession of property or acquired it, knowing about the illegality of such an action.

Bona fide illegal owners must include persons who did not know and could not know that the person from whom the property was purchased (the subject of the claim) did not have any rights to alienate it. Most often, these items are purchased in Commission sales locations.

The difference between these two types of owners is that the plaintiff may not always claim the return of property rights from a bona fide illegal owner. The most common cases are when the plaintiff transfers his property at will to a third party for storage or hiring under the relevant contract. If this property later turns out to be in the possession of a bona fide illegal owner, the plaintiff cannot demand the return of the property right, since the choice of a third party (with whom the contract was concluded) is the responsibility and risk of the plaintiff, but not the defendant. In this case, it is not necessary to file a vindication claim, but a claim for damages in relation to non-compliance with the terms of the property transfer agreement. In such a claim, you can also demand the replacement of a thing with an equivalent one.

From the above information, it can be concluded that the gratuitous receipt of property from a person who did not have the right to dispose of it in this way allows the original owner to claim the return of property rights in any case.

But the current legislation does not allow you to demand money or securities from a bona fide purchaser, since it is impossible to prove the method of obtaining them (even if the plaintiff has at his disposal the numbers of all bills or shares).

The law of Ukraine allows you to require a bona fide illegal owner to return property rights in the event that the plaintiff lost the property, not of their own will: for example, it was stolen. Similarly, it is possible to resolve a legal dispute about property that was transferred under the contract, but the plaintiff lost it not by his own will or against it (fictitious clauses of the contract, other fraudulent actions, threats and intimidation).

Negatory claim and its features

The right of ownership may be violated not only when the owner loses his property from possession, but also when third parties take actions that interfere with the normal disposal of this property or interfere with its intended use. If such a situation occurs, the owner can use the right to protect their property (not related to the deprivation of ownership rights) and file a claim, which in the legal literature is called a negatory claim.

A non-compensatory claim is completely different from a vindication claim in that the owner does not attempt to return his property, since it is already in his possession. The essence of a non-compensatory claim is that it serves as an effective mechanism of legal protection when third parties try to prevent the use of property. Such property can be housing, a car, a building plot, etc. Also, such a claim is applied in cases where the owner can not actually dispose of the property, although it is in his possession.

It is noteworthy that the plaintiff can be both the owner of the property and its owner. The owner can file a claim against both third parties and the owner. The latter case is most common when concluding a sublease agreement, when the owner takes various actions to prevent subleaders from using rental premises or housing.

Legal practice also shows that there are numerous cases when purchasing a land plot, the new owner did not have the opportunity to properly dispose of their acquisition, as the former owner created various obstacles to this (turned off water or electricity, damaged property, etc.)

There is no Statute of limitations for a non-compensatory claim. This is due to the fact that the requirement for such a claim is to eliminate the violation that began earlier and is valid at the time of appeal to the judicial authorities. That is, as long as there are violations, you can always go to court. If the offenses were terminated, there are no grounds for filing a lawsuit.

A non-compensatory claim can only be filed if the actions of a third party or persons are unlawful in relation to the possibility of using or disposing of property. Thus, if a neighbor’s building materials prevent you from driving a car, then a claim to remove them will be legitimate. However, if there are no barriers to the use of the property (for example, a neighbor’s house obscures the Windows of your home, but does not interfere with the disposal and use of this house), then the claim will be considered groundless.

A non-compensatory claim may not be used as a method of legal protection if the defendant’s actions correspond to or are based on the current legislation of Ukraine.

Non-compensatory claims are most often received from civilians, since the actions of third parties in most cases fall under administrative or criminal liability. Such actions may include arbitrariness, abuse of office, or illegal construction.

A claim for exclusion of property from the inventory also belongs to the varieties of the claim under consideration. In this case, the plaintiff uses it to protect the right to dispose of their property, and not to protect the right to use it. In this case, a similar claim can be filed by both the owner and the person who received the property under the contract.

Article 29 of the Criminal procedure Code of Ukraine indicates that if there are substantial grounds for causing damage, the judicial authority, Prosecutor or investigator must take appropriate measures to ensure the claim. The CPC also regulates the process of securing a civil claim in which the property of the accused person is subject to arrest. In this case, the property that is seized will be described and transferred to storage: organizations, businesses or family members of the accused by a court order.

Seizure of property and its inventory are also restrictions on property rights that can be taken to secure a claim. This is also indicated by article 149 of the civil code: when considering cases for damages, alimony or debt repayment, the court may seize the property of the defendant, so that it is impossible to dispose of it before the decision is made. This is also the current method for removing difficulties for the enforcement of a court decision. The court may impose an arrest on its own initiative or at the request of the plaintiff or his representative.

Methods of securing a claim include:

  • seizure of the defendant’s property, and the property may be owned by the defendant or by third parties;
  • prohibition of disposing of property and performing certain actions in relation to it;
  • prohibition for third parties to transfer property or money to the defendant;
  • complete suspension of the sale of the defendant’s property (if a corresponding claim for ownership is filed);
  • complete suspension of the recovery of property under a notarial order (if there is a fact of contesting this order).

Property can also be mistakenly attributed to the estate of a deceased person. Such an inventory is made by a notary. In order to challenge the decision of a judicial body to seize property and remove restrictions on its use, the Civil Code of Ukraine, namely article 71, provides for a three-year Statute of limitations. The beginning of the term begins from the moment when the plaintiff learns or should have learned about the seizure of property.

Dmytro Kasyanenko

Lawyer, managing partner of the Kasyanenko & Partners Law Firm. Since 2002, he has gained extensive legal experience in key positions in business structures and the public sector in the field of law and finance.

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