1. The subject of the dispute is the elimination of obstacles in the disposal of a communal property land plot on which an unauthorized non-residential building was constructed, and the invalidation of transactions related to this building.
2. The court of cassation, overturning the decisions of the previous instances, was guided by the following main arguments:
* The claim to cancel the decision of the state registrar on the registration of ownership of an unauthorized construction is an improper way to protect the ownership right to the land plot, as it does not resolve the legal fate of the unauthorized construction and does not restore the unity of the legal fate of the land plot and the real estate located on it. A proper way of protection in such a case is the demand for the demolition of the unauthorized construction or the recognition of ownership of it.
* A dispute regarding the recognition of the invalidity of the act of acceptance and transfer of real estate to the authorized capital of a limited liability company is subject to consideration in the order of commercial proceedings, as it arises from corporate legal relations.
* Claims for the obligation to return the land plot, the cancellation of the decision on state registration of ownership of a non-residential building, the recognition of the invalidity of the mortgage agreement and the cancellation of the decision on state registration of encumbrance are also subject to consideration in the order of commercial proceedings, since the parties to these legal relations are legal entities.
* The court noted that filing claims against a person who is no longer the owner of unauthorized property is an improper method of protection, as it does not restore the right of the territorial community.
3. The court of cassation partially satisfied the cassation appeal, overturned the decisions of the previous instances and issued a new decision: it refused to satisfy the claim against an individual (PERSON_1) to cancel the decision on state registration of ownership of unauthorized construction, and closed the proceedings in the case regarding the claims against legal entities (TOV “Sportyvno-ozdorovchyi klub na Vydubychakh” and TOV “Stroyinvest Group”).
Note: In this case, the Supreme Court departed from the legal conclusion stated in the previous decision of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Cassation Civil Court regarding the proper method of protection in cases of unauthorized construction. The court indicated that the claim for cancellation of the decision (entry) on registration of ownership, as well as the claim for termination of ownership, is improper.
