A large number of civil cases relating to the common shared / joint property considered by the courts. As a rule, the plaintiff (the plaintiffs) seeking compensation for their share, or stop the right to a share in the common property of other persons (the defendant, the defendants). Consider the case where the plaintiff wants to obtain compensation for its stake.
Consider the example of allocating a share of the apartment or house. As a rule, the court must provide evidence that the allocation of an appropriate share of the Claimant with this apartment (house) is technically impossible, sharing an apartment with the defendants is also impossible, and others. Of course, given the evidence that the plaintiff is the owner of the property.
First of all, I note that under the provisions of Articles 21, 24, 41 of the Constitution of Ukraine, Articles 319, 358 of the Civil Code of Ukraine, all citizens are equal in their rights, all owners are provided with equal conditions for the exercise of these rights, including the protection of property rights.
The right to co-owner in the allocated share of the common property by obtaining monetary compensation cost of share in the property can not be limited by other co-owners and co-owner of such right corresponds a duty of other co-owners to pay a share of compensation, the amount of which is determined from the actual value of the property at the time of consideration of the case by the court. This prerequisite purpose of monetary compensation is only the consent of co-owner, to make a claim on the apportionment share, and does not provide for mandatory consent of the other co-owners to such isolated or put right the co-owner in the selection dependent on the consent of the other co-owners, and the motives with which the owner intends to sell its right on isolated.
In most cases, courts are guided by just such arguments when deciding.
However, there are conflicting conclusions vessels, with reference in particular to the fact that the transponders have no means to pay compensation. Thus, the courts noted that the allocation of financial compensation to the plaintiff the defendant can not pay. Termination of the right of ownership the share of the plaintiff apartment, failing payment of compensation by the defendants, would violate the rights of the claimant. In turn, the defendant forced the plaintiff to buy out the share of apartments will lead to the violation of their rights, because the legislation does not provide for the acquisition of ownership by force.
Let me note that the legal regime of the common property is determined by Chapter 26 of the Civil Code of Ukraine taking into account all of its participants. Possession, use and disposal of joint-ownership is carried out with the consent of all co-owners, and in the absence of consent – the dispute resolved by the court. Regardless of the size of the particles, the co-owners in the exercise of these powers have equal rights.
In accordance with the first, second article 364 of the Civil Code of Ukraine, each of the owners of the common property shall be entitled to the share allocated to the nature of the property which is jointly owned.
If released into the nature of the share of the common property is not permitted by law or impossible (Article 183 of the Civil Code of Ukraine), the co-owner who wants to stand out, is entitled to receive money from other co-owners or other material compensation for the value of its shares. Co-owner of compensation may be granted only with his consent.
In solving this kind of cases, the courts, except for Art. 364 of the Civil Code of Ukraine should take into account the general principles of civil law (Article 3 of the Civil Code of Ukraine) on justice, fairness and reasonableness, taking into account the rights and interests of all co-owners. It is necessary to carefully examine the facts of the case to find out, do not abuse the plaintiff wants to isolate the share of the common property by obtaining monetary compensation share of the value of the assets and that the realization of this right does not violate the rights of others, who are unable to pay the co-owner compensation the value of its share.
Parties, in turn, must be timely to provide evidence in support of its position that the legal battles are not tightened