★★★★★ 5.0 ON GOOGLE · CLIENT REVIEWS | AVAILABLE 24/7
For many years, the prosecutor’s office, defending state interests in land relations, acted according to an established, though not always effective, pattern. Claims usually came down to invalidating decisions of authorities on land allocation and cancelling the corresponding state acts. Such cases were heard within civil, commercial and administrative proceedings.
The situation changed radically after December 15, 2017, when Law No. 2147-VIII entered into force. It introduced a cornerstone of the judicial system, the principle of effective judicial protection, which forced lawyers to reconsider their approaches to resolving land disputes.
The task of modern justice is not merely a formal review, but rather fair, impartial and timely protection of violated rights. This concerns the interests of individuals and legal entities, as well as the interests of the state.
A clear task: Under the Civil Procedure Code and the Commercial Procedure Code, courts must now resolve disputes for the purpose of effective protection of rights, freedoms and interests.
Expanded possibilities: If the law or a contract does not define a specific method of protection that would be effective in a particular situation, the court may independently determine such a method in its decision. This opens up new possibilities for restoring violated rights.
The change in the philosophy of justice has led to a genuine “competition” between different types of claims, especially in cases concerning land that is under enhanced state protection. The most popular instruments have become:
Vindication claim (rei vindicatio): used to reclaim property (in this case a land plot) from someone else’s unlawful possession (Article 387 of the Civil Code).
Negatory claim (actio negatoria): allows the removal of obstacles that prevent the owner from using or disposing of their property (Article 391 of the Civil Code).
Condictio (unjust enrichment): used to return property acquired without sufficient legal grounds (Article 1212 of the Civil Code).
The wrong choice of claim may lead to the court fully rejecting the demands, so lawyers must carefully differentiate between statements of claim.
The prosecutor’s office most often applies to the court regarding land that has a special status or whose alienation is prohibited. These are:
Land of nature reserve and environmental protection designation
Land of historical and cultural designation
Land of forestry designation
Land of the water fund
The application of a specific method of protection depends on the nature of the violation and the type of land. For example, for water fund land, judicial practice leans toward applying the negatory claim, since the state does not lose its ownership right to it.
Judicial practice regarding land disputes is constantly changing, especially when it comes to protecting the interests of the state. Today the Supreme Court is focused on applying the most effective method of protecting rights, which has led to important changes in approaches to returning land.
For example, regarding land that cannot be in private ownership (such as water fund land), courts predominantly apply the negatory claim. At the same time, for land that can be privatized (for example, land of forestry designation), the judicial position leans toward the vindication claim.
Initially there was a different practice. In 2020 the Supreme Court (ruling of the Commercial Court of Cassation No. 911/3738/17) considered that the return of forest fund land should be treated as a negatory claim. This was convenient, since the negatory claim has no limitation period and can be filed at any time while the violation of rights continues.
However, this legal position changed in 2021. The Grand Chamber of the Supreme Court (ruling of the Grand Chamber of November 23, 2021 in case No. 359/3373/16) established that the effective method of protecting the ownership right to forest fund land is the vindication claim in accordance with Article 387 of the Civil Code of Ukraine. This decision was not unanimous (10 votes against 7), which indicates the complexity and controversy of the issue.
The vindication claim is considered the “queen” among claims for the return of property, but its application has certain difficulties that defendants often exploit:
Limitation period: The vindication claim has a general limitation period of 3 years, which may prevent the prosecutor’s office from returning land if this period has been missed.
Protection of a bona fide purchaser: If the owner acquired the property lawfully, their rights are protected.
Court fee: A vindication claim carries a significant court fee (1-1.5% of the value of the property), whereas a negatory one carries a much smaller fixed amount.
It is precisely to circumvent these obstacles, especially the limitation period, that prosecutors resort to tricks, trying to apply the negatory claim even where its application is questionable.
The situation where the state tries to reclaim land without compensating the owners has led to a significant number of claims against Ukraine at the European Court of Human Rights (ECtHR).
In the case “Dacia S.R.L.” v. Moldova, the ECtHR clearly noted: the state cannot be exempted from observing limitation periods, as this contradicts the principle of legal certainty and creates a discriminatory advantage in favor of the state.
Key conclusions of the ECtHR:
The risk of a state body’s error must fall on the state itself.
The correction of such errors must not be carried out at the expense of bona fide purchasers, but must provide for proper compensation.
The absence of unified judicial practice and predictability of decisions is a violation of the right to peaceful enjoyment of property.
These conclusions are of decisive importance and can be effectively used to protect private property.
When the government or its bodies try to return state property, they often disregard limitation periods. Unfortunately, Ukrainian courts in most cases tend to protect the interests of the state. However, the case law of the European Court of Human Rights (ECtHR) provides private owners with strong arguments to protect their rights.
In the case “Dacia S.R.L.” v. Moldova, the ECtHR clearly established that the rules on limitation periods must be applied equally to everyone. The Court emphasized that exempting state organizations from this obligation:
Destroys established legal relations. The principle of legal certainty is violated when a person cannot be confident in the lawfulness of their rights.
Grants the state a discriminatory advantage. This creates an unjust situation where a private person bears responsibility for errors made by a state body.
Illustrative for Ukraine is the ECtHR decision in the case “Drozdik and Mikula v. Ukraine”, which concerns a situation where the state invalidated ownership rights to land plots that people had owned and used for many years, relying on the lawfulness of the actions of state bodies.
In this decision the ECtHR formulated key principles:
The state must not correct its errors at the expense of interested parties. The risk of any error by a state body must be borne by the state itself.
Correcting an “old error” cannot disproportionately interfere with a new right. If the ownership right was acquired in good faith, it cannot be cancelled without providing adequate compensation.
The principle of good governance requires the state not only to act promptly in correcting its errors, but also to pay proper compensation or another form of reimbursement to the former bona fide owner.
Although in this case the ECtHR found a violation of Article 1 of the First Protocol to the ECHR (the right to peaceful enjoyment of property), it also noted the lack of uniformity of judicial practice in Ukraine. This shows that different courts may apply the same rules of law differently, which complicates the predictability of consequences for citizens.
Recent judicial practice demonstrates constant attempts to circumvent established rules in order to return land in favor of the state. One of the most recent examples is the ruling of the Civil Court of Cassation of January 8, 2025 in case No. 369/11062/17, by which the case was referred for consideration to the Grand Chamber of the Supreme Court.
The essence of this ruling lies in the intention to apply the negatory claim to reclaim a land plot of forestry designation in order to circumvent the limitation period that applies to the vindication claim.
This ruling raises many questions due to its legal reasoning. The court directly states that the occupation of forest land is a violation not connected with deprivation of possession, and therefore the negatory claim can be applied to it, which would allow limitation periods to be disregarded.
To this end, the court resorts to “verbal acrobatics”, equating forest fund land with water fund land. The logic is as follows: if a private person cannot own water fund land, then they cannot own forest land either. However, this is an impermissible error, since the Land Code of Ukraine clearly distinguishes between categories of land:
Land of nature reserve and other environmental protection designation.
Land of forestry designation.
The court effectively merges these separate categories, which contradicts the law, in order to apply a mechanism of challenge that is “convenient” for it.
Behind this legal battle a much bigger story is hidden. The reclamation of land plots by the prosecutor’s office in favor of the state actually takes place in the interests of the state monopolist, the SE “Forests of Ukraine”.
Although draft law No. 9516, which envisaged transforming this enterprise into a joint-stock company with subsequent privatization, was rejected, the Verkhovna Rada recently adopted a new law. This law allows the formation of a business company, 100% of whose shares belong to the state, on the basis of the SE “Forests of Ukraine”.
This opens the way to future privatization. If private owners gain control over this enterprise, they will be able to gain control over all the forest land of Ukraine, which makes court disputes over its return especially relevant.
It is a dispute over the rights to a land plot, its boundaries, use or ownership. Such cases require an analysis of documents and judicial practice.
It is the reclamation of a land plot from someone else’s unlawful possession. Judicial practice is gradually changing in favor of this method of protection.
Yes, ECtHR case law protects ownership rights from state errors and is used as an argument in national courts.
If there are grounds, yes. Success depends on the circumstances, documents and current judicial practice, which the lawyer evaluates.
Land disputes are complex due to changing practice and the specifics of evidence, so the support of a lawyer significantly increases the chances of success.
Author: Ilona Melnychuk, attorney In Brief You can dissolve a marriage through the registry office (DRATS, the body for the state registration of civil status
The “Lexon” attorney secured the complete cancellation of a resolution imposing a fine under part 2 of Article 122 of the Code of Ukraine on
It happens more often than it seems: one day you suddenly find out about the existence of a court decision issued in a case you
Grand changes await the Ukrainian business environment. As of August 28, 2025, the Commercial Code of Ukraine loses its force. This is not just a
Buying real estate is always a serious step that requires not only significant financial investment, but also thorough legal verification. To avoid unpleasant surprises, it
Buying real estate has always been a responsible step, and in the conditions of 2025, when economic instability and wartime risks intensify fraudulent schemes, it
