of June 12, 2007
About recognition of the property right to the building
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 07.08.2007 it is refused in to open production on review)
Case No. 2/326
NAME OF UKRAINE
The Supreme Economic Court of Ukraine as a part of board of judges:
the chairman - Ovechkin V. E.
judges - Chernova E. V., Tsvigun V. L.
with the assistance of representatives:
the claimant - Tereshchenko M. A.
defendant: Yatselenko Yu. A., Kalishuk B. G., Tsareva T.A., Sharapa M. V.
third parties: - E.A., Yakushev A. G. grape stalk.
having considered writs of appeal of Service Invest Management LLC and JSC Kiev Radio Plant in proceeding in open court
on the resolution of 05.04.2007 Kiev Economic Court of Appeal
in the matter of No. 2/326
in the claim of JSC ATP Transportnik
to Service Invest Management LLC
(the third parties - Fund of state-owned property of Ukraine, GP "ON" the Kiev radio plant", JSC Kiev Radio Plant)
about recognition of the property right to the building
Decision of economic court of Kiev of 05.12.2006 (judge Domnicheva O. I.) the claim it is refused in connection with groundlessness of claims.
Resolution of the Kiev Economic Court of Appeal of 05.04.2007 (judges: Motor O. A., V.V.'s Burse, Aldanov S. O.) the decision is cancelled, the claim is satisfied - based on the Art. of the Art. 391, of 392 Civil Code of Ukraine and the p. 2 of the Art. 48, as Art. 49 of the Law of Ukraine "About property" the property right to the building 77 (repair shop) on Ulitsa Borispolskaya, 9, in Kiev is recognized for JSC Motor Transportation Company Transportnik (cadastral number of the parcel of land 63:275:090) and the certificate on the right property of JSC Kiev Radio Plant, the issued 12.05.2005 by Head department of utility property of Kiev of executive body of the Kiev city council (The Kiev city public administration) based on the order of Head department of utility city property of Kiev No. 758-B and registered in the Kiev city bureau of technical inventory count and registration of the property right to real estate units 22.08 is cancelled of 12.05.2005. 2005, the register book No. d16p-272 at register No. 5478-P.
Service Invest Management LLC and JSC Kiev Radio Plant (further - JSC KRZ) in the made writs of appeal ask to repeal the resolution, the decision to leave without changes, referring to violation of the Art. of the Art. by Appeal Court 256, of 257, of 321, of 346 Civil Code of Ukraine and the Art. of the Art. 27, of 34, of 43, the p. 3 of the Art. of 101 GPK of Ukraine. In particular complainants consider that the Appeal Court overstepped the bounds of the petition for appeal and claims and independently, without relevant requirement of the Claimant, passed the decision on cancellation of the property right of person which in this case has the procedural status of the third party, than violated the Art. of the Art. 27, of 101 GPK of Ukraine which determine the procedural status of the third parties and provide that the decision on case can only affect their rights or obligations concerning one of the parties, but not directly concerns the rights or interests of these persons on the relation in matter in issue.
At the same time the question of legitimacy of finding of JSC Kiev Radio Plant of the property right to the building of the case No. 14 (fire depot) was not subject of action and judicial research. JSC Kiev Radio Plant at the time of sale of the disputed building had all stipulated by the legislation documents of title. After the conclusion of the purchase and sale agreement of real estate of 14.11.2005 between JSC Kiev Radio Plant and Service Invest Management LLC the property right to the building of the case No. 14 (fire depot) was in established by the legislation procedure is drawn up for Service Invest Management LLC.
At the same time at the time of adoption by the Kiev Economic Court of Appeal of the resolution on recognition for the Claimant of the property right, documents of title which confirm the property right of Service Invest Management LLC with nobody are appealed and not recognized as court invalid.
Identifying the building No. 77 and the case No. 14, the Appeal Court did not consider that total area of the building No. 77 (repair shop, инв. No. 400042) according to explication to the MASTER PLAN constitutes 2290 sq.m answers the area of the building which is located in absolutely other city and the case 73 adjoins ABK (инв. No. 400040), while the case No. 14 of the Militarized fire protection (пождепо, letter 14 (figure) инв. No. 400015) has the area of external building of 758 sq.m (interior area of 632,2 of sq.m).
Also out of attention of Appeal Court there was the fact that the specified constructions are on the different parcels of land. The case No. 14 (пождепо) is located on the parcel of land 8 000 000 000 63:275:0046, that is confirmed with the act of establishment of external borders and is approved 15.01.2003 by the director of JSC AP Transportnik S. Palamarchuk, the technical report on establishment of external borders of land use registered by Head department of land resources in KMDA of 27.01.2003 at No. 000176,182,184 (in case papers) and the next cadastral plan of 20.02.2006 (the register of the parcels of land under code 63:275:046). At the same time the Appeal Court did not even pay attention that cadastral number of the parcel of land where the building No. 77, is located has absolutely other number 63:275:090.
Board of judges, having checked the actual facts of the case regarding correctness of their legal evaluation by Appeal Court and having heard explanations of the agents of the parties and the third parties who are present at meeting, came to conclusion that writs of appeal are subject to satisfaction, and the appealed resolution - cancellation with leaving without changes of primary decision on the following bases.
Refusing the claim, the Trial Court recognized that:
According to the Order of Fund of state-owned property of Ukraine of March 27, 1998 No. 8-AO, to Appendix to the Order of Fund of state-owned property of Ukraine of March 27, 1998 to No. 8-AO and the Act of acceptance transfer of fixed assets of Kiev Radio Plant Production association the authorized fund of the claimant included production rooms down the street Boryspil, 9, in the city of Kiev, namely:
- administrative and production room Case 73 (inventory number 400040);
- case 73A (sink) inventory number 400041);
- building 77 (repair shop) inventory number 400042);
- mechanical workshop (inventory number 410035).
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