Removing obstacles to the use of housing: advice from a lawyer

What should you do if your apartment is occupied by an unauthorized person or a former relative who refuses to leave it? In an article for LIGA ZAKON, Iryna Smitiukh, attorney at law at LESHCHENKO & PARTNERS, explains how the rightful owner can protect his or her right to housing.

Your right to own, use and dispose of your home is guaranteed by the Constitution of Ukraine. The law is on your side, confirming the inviolability of this right. However, what should you do when someone prevents you from using your home freely? Do your former relatives not want to leave, or have unauthorized persons illegally occupied your apartment? Attorney Iryna Smityukh explains how to act in such situations and effectively protect your rights.

First steps to take when you are prevented from using your home

Imagine the situation: you are the rightful owner, but you cannot get into your own apartment. First of all, try to talk calmly to the intruder. If this does not help, be sure to call the police and record the fact of obstruction. However, these actions often do not lead to the desired result. To really protect your rights, you will need the help of a court.

Preparing for court: defining a strategy

Before filing a lawsuit, it is important to determine how to protect your violated rights, as the plaintiff independently determines how he or she sees it possible to eliminate the violations.

The key is to determine who is the rightful owner of the property.

Article 391 of the Civil Code of Ukraine clearly states that an owner has the right to demand the removal of any obstacles to the use and disposal of his or her property. If someone is preventing you from using your property, you can file a so-called negative claim with the court to have these obstacles removed.

It is important to understand the difference between a negative and a vindication claim. A negative claim is filed when you remain the owner and possess the property, but you are prevented from using it. A vindication claim is applied when you have lost possession of the property and want to return it.

Before going to court, you should also analyze whether you and the person who is obstructing you have any contractual or other obligations. A negative claim is effective precisely in the absence of such obligations, when only absolute property rights of the owner exist.

Let us analyze the examples

For a better understanding, let’s look at the two most common cases:

Situation №1: Family members (former or current) are creating obstacles.

Unfortunately, it can be very difficult to evict a family member or former family member from their own home in Ukraine. The courts often defend the right to housing by referring to the Constitution of Ukraine and Article 8 of the European Convention on Human Rights.

While the Civil Code protects the rights of the owner, the Housing Code of Ukraine, adopted in Soviet times, contains provisions that make evictions difficult. Article 9 of the Housing Code prohibits eviction or restriction of the right to use housing other than on the grounds provided for by law. Article 156 of the Housing Code stipulates that family members of the owner have the same right to use the housing as the owner, even after the termination of family relations.

The Supreme Court has repeatedly confirmed that the loss of family member status does not deprive a person of the right to use housing (resolutions of the Grand Chamber of the Supreme Court of 10.03.2021 in case No. 686/26093/19-ц, of 13.10.2020 in case No. 447/455/17 and of 04.07.2018 in case No. 353/1096/16-ц).

When considering such cases, the court weighs the balance between the property right and the right to housing of the former family member, taking into account the availability of other housing and other important circumstances (Resolution of the Grand Chamber of the Supreme Court of October 13, 2020 in case No. 447/455/17-ц).

However, there is hope for a change in judicial practice. In the ECHR judgment in the case of BILYAVSKA v. UKRAINE (84568/17) of 27.03.2025, the court criticized the application of outdated provisions of the Housing Code, noting that they do not correspond to modern realities and may violate property rights. The ECtHR emphasized the need for a fair balance between the interests of the owner and other persons.

Therefore, in such cases, it is important to refer not only to the Civil Code, but also to the case law of the European Court of Human Rights.

Situation No. 2: A family member of the former owner (in fact, a stranger to you) is creating obstacles.

With the change of ownership, it would seem that the former owner and his family lose the right to use the property. However, the court practice is also ambiguous. The courts may take into account a person’s long-term residence in the disputed housing in the absence of another, considering this to be a basis for protecting their right to housing under Article 8 of the Human Rights Convention (Resolution of the Grand Chamber of the Supreme Court of August 21, 2019 in case No. 569/4373/16-ц).

However, there is an opposite position that defends the new owner. The courts refer to Articles 401 – 406 of the Civil Code of Ukraine, which regulate the right to use someone else’s property (easement). Article 405 of the Civil Code of Ukraine defines the right of the owner’s family members to use the property, which is determined by the owner. Article 406 of the Civil Code provides for the termination of easement, in particular, in the event of the cessation of the circumstance that was the basis for its establishment.

The Supreme Court in its case law (Resolution dated November 5, 2014 in case No. 6-158цс14 and others) emphasizes that the right to use housing by the owner’s family members is derived from the right of ownership. With the termination of the former owner’s property right, the right of use of his family members also ceases. Thus, persons who refuse to vacate their housing are subject to eviction.

It is important to note that as long as you are the owner of real estate, you have the right to file a negative claim with the court to remove obstacles to the use of your property throughout the entire period of violation of your right.

Advice from a lawyer to effectively protect your home

Cases involving the removal of obstacles to the use of housing require a careful analysis of each situation and the selection of the right defense strategy.

Attorney Iryna Smitiukh advises:

• Gather as much evidence as possible: Record all the facts of obstruction (written appeals, photos, videos, testimonies, appeals to the police).
• Determine the status of the person who is interfering: Is it a member of your family, a former relative, or a stranger? This determines the way of protection.
• Try to reach an agreement: An amicable settlement can be faster and cheaper than going to court.
• Consult a lawyer: A qualified lawyer will help you choose the right way to defend yourself, prepare documents and justify your position in court, taking into account the latest changes in legislation and case law, including the decisions of the ECHR.
• In cases with former family members: Emphasise the termination of family ties and your property rights, referring to the ECHR case law on the balance of interests.
• In cases with relatives of the former owner: Insist on the derivative nature of their right of use and its termination with the change of ownership, using the provisions of the Civil Code and the case law of the Supreme Court.
• Be prepared for litigation: Such cases can be lengthy, so be patient and cooperate with your lawyer.
• Be aware of a negative claim: You have the right to demand the removal of obstacles as long as they exist.

Protecting your right to your own home is a serious process that requires knowledge and experience. Do not hesitate to seek legal assistance to effectively restore your right to freely use your home.