Introduction

Housing rights of citizens are the separate group of rights, where one can single out the right to: acquisition of subjective rights to housing; affordable housing; safe housing; the right to manage housing; stable housing disposition; protection of housing rights. Each of these housing rights performs a socio-economic function, is realized through an appropriate mechanism, is of particular importance to any person, since it is directly related to a sufficient standard of living. Despite the importance of housing rights, it is advisable to single out a special right among them

– The protection of housing rights. Its specific feature is due to the fact that the protection of housing rights can be considered as one of the guarantees of housing rights, in particular, the protection guarantees the restoration of the rights in case of forced eviction, restoration of the right to housing of a child wrongfully deprived of housing. Protection of housing rights is correlated with the provision of housing to socially vulnerable groups. It facilitates the restoration of the state of rights that existed before the violation; it assists to receive the reimbursement, to appeal certain illegal actions, to recognize housing rights, etc.

Despite the importance of housing rights protection, it is not singled out in the norms of the Housing Code of the Ukrainian SSR (Law, 1983). As a result, this protection is enshrined in various regulatory legal acts, and its content does not have a clear doctrinal definition. The problem of the indicated issue is strengthened by the fact that the protection of housing rights is interpreted and realized differently in relation to children and adults, owners and tenants, housing users and people in need of housing. We emphasize that a separate category of cases – housing disputes has been formed in judicial practice, and, consequently, a large number of court decisions has been accumulated, a classification of these disputes at the level of the judicial power has been provided.

Practical problems have been formed along with scientific problems in the field of protection of housing rights, in particular, regarding the separation of housing disputes from civil and other disputes of civil jurisdiction. This situation is due to the fact that recently the provision of housing needs has been mainly transferred to people in Ukraine. At the same time, 6 million of Ukrainians need their own housing (Affordable Housing, 2020).

The relevance of the issue studied in this article is confirmed by the fact that European and American scholars are interested in the protection of housing rights, in particular in the sphere of providing housing for internally displaced persons, accessibility and sufficiency of housing. Besides, addressing the issue of providing housing and protecting housing rights is due to people’s decline in earnings around the world, because not everyone can meet his or her own housing needs.

Results

Correlation of Categories of Protection and Security of Housing Rights

Various aspects of housing rights are regulated and protected by many international and legal instruments, including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All forms of Discrimination against Women, the Convention on the Rights of the Child, etc. The UN Committee on Economic, Social and Cultural Rights provided in some comments a more detailed interpretation of certain elements of the right to housing. Comment No 4 has established seven components of the right to adequate housing: a legal guarantee of home ownership; availability of services, materials, premises and infrastructure; accessibility; density of population; location; and cultural adequacy (Law, 1994). Comment No 7 itemizes the mechanism for preventing forced evictions (Law, 1997). Analyzing the international protection of housing rights, B. Thiele rightly emphasizes that most states are parties to international acts that protect the right to housing. Therefore, it is advisable to include the right to housing into national legislation. It is especially important in legal systems that use the principle of non-compliance with international treaties. Courts in these legal systems may refuse to recognize international law as a basis for a claim. As a result, victims of housing rights violations are often unable to use their domestic judicial systems. States enshrining housing rights within legislation fulfill their respective international and legal obligations and create domestic legal systems that extend the opportunities of some individuals and groups so that they can assert their rights (Thiele, 2002).

It follows from the above that international legal acts in the field of guaranteeing housing for people are based on the fact that protection is practically correlated with the concept of security. This approach is enshrined in the content of Part 5 of the Art. 9 of the Housing Code of the Ukrainian SSR: “Housing Rights are Protected by Law, Except when They Are Exercised in Violation of the Purpose of These Rights or in Violation of the Rights of Other Citizens or the Rights of State and Public Organizations” (Law, 1983). A similar approach is defined in the letter of the State Department for Adoption and Protection of the Rights of the Child “On the protection of housing (property) rights of children” dated from June 23, 2010 No. 4.1/6-49/3248, which provides an explanation of the peculiarities of transactions with the child’s property (housing) ( Law, 2010). Besides, the Law of Ukraine “On Fundamentals of Social Protection of Homeless Persons and Homeless Children” also establishes that: a person has the right to receive educational and training activities that should form the ability of citizens to apply the norms of legislation to realize and protect their housing rights (paragraph 2, Part 1 of the Art. 10 of the Law); overcoming the homelessness of orphans, children deprived of parental care, and persons from among them by providing housing (the Art. 11 of the Law); protection of the rights and interests of children during transactions concerning residential premises (the Art. 12 of the Law); selected risk groups for loss of housing or the right to use it (the Art. 15 of the Law); Chapter IV of the Law is focused on the system of reintegration of homeless people, where the primary place is given to the provision of housing (Law, 2005).

Summarizing the above legislative approach, it can be argued that there is an equation of protection and security of housing rights in international and national legislation. This situation arises due to the fact that the right to housing is an integral part of a broader category – social protection of a human being. The concept of “social protection” along with the right to social guaranteeing covers other social rights, such as the right of citizens in need of social protection to receive housing free of charge or for payment available to them (Part 2 of the Art. 47 of the Constitution of Ukraine), the right to a sufficient standard of living (the Art. 48), the right to health care (the Art. 49), the right to a safe environment for life and health (the Art. 50), the right to education (the Art. 53) (Moskalenko, 2003).

Delimitation of Housing Rights Protection from Civil Rights Protection

Ukrainian researchers in the field of housing law pay attention to the issue of protecting housing rights. Karmaza while studying the protection of housing rights indicates that the methods of protection of housing rights coincide with the methods of civil rights enshrined in the Art. 16 of the Civil Code of Ukraine (Karmaza, 2012). Halyantych singles out the protection of housing rights out of civil proceedings (Halyantych, 2017). According to Kholod “protection within the housing sector involves measures aimed at stopping offenses and applying statutory liability measures to offenders” (Kholod, 2014). The protection of housing rights in international legal sources is considered in terms of the right to housing, which ensures the acquisition of the right to housing. Thus, B. Thiele points out that the protection of housing rights is directly linked to the right to adequate housing, which is an additional tool for defense attorneys and other interested persons in promoting healthy living and living conditions and thus health protection of a man and society (Thiele, 2002). The results of the work of Rod E. Howard-Hassmann make it possible to highlight the need to protect the right to own property, in particular in the aspect of housing, which provides protection of human life (Howard-Hassmann, 2013). We would like to emphasize that the courts annually generalize the judicial practice on housing cases, which are also materials for scientific research.

Despite the attention of scholars to the issue of protecting housing rights, a single position on the definition of housing rights protection has not been formed in the field of housing law; specific features of this definition that would determine its difference from the protection of civil rights have not identified.

It is known that the dominant position in civil law is the fact that the protection of the right covers both the realization of the relevant subjective right and its protection in case of violation. Thus protection is used both in case of violation of the right and in case of its non-recognition or denial, and when there is a real threat of their violation (Kot, 2017). Protection of rights is possible in the presence or fact of their violation, or sufficient grounds to consider such a violation inevitable (Marchenko, 2020). Thus, the protection of civil rights and interests in civil law is an independent category that is part of the legal relations of protecting the rights and is applied in case of violation of the right or the presence of a real threat of such violation.

The legislator established the right to protection of civil rights in Part 1 of the Art. 16 of the Civil Code of Ukraine, according to which every person has the right to go to court to protect own personal non-property or property rights and interests (Law, 2003). Such a legislative approach reduces the protection of civil rights to the legal possibility of a person to apply to the competent authorities of the state for protection in case of necessity and when a person believes that his right has been violated or may be violated. That is, the Ukrainian legislation provides a wide opportunity to apply for protection. In this case, proving the violation or the violation of the rights is entrusted to the person who believes that his rights, interests are violated. It follows from the above that the protection of civil rights is used in case of violation of the relevant civil right.
In contrast, the protection of housing rights in both international and national law covers a wider range of legal relations. Thus, the protection of housing rights is:

1. Provision of housing needs of persons who cannot satisfy it on their own due to financial situation, illness, unemployment;

2. Acquisition of the right to social housing by homeless, internally displaced persons, orphans, etc.;

3. creating conditions to prevent homelessness;

4. Protection against forced eviction;

5. Obligations to overcome housing accidents;

6. Ensuring stable and safe use of housing;

7. Measures to overcome domestic violence in case of deprivation of housing as a form of economic violence in the family;

8. Restoration, recognition of housing rights and reimbursement in case of their violation.

This approach is broad in defining the protection of housing rights. We can observe the existence of various constituent elements there. In addition, if the protection of civil rights mainly performs a protective function, then the protection of housing rights – protective, security and preventive functions. The use of protection of housing rights in case of their violation is only an integral part of a broad definition of the protection of housing rights of children.

Given the existing broad approach to the protection of housing rights, it should be emphasized that it can be divided depending on the legal status of the subject, in particular protection of housing rights of children, protection of housing rights of servicemen, homeless people, family members of the dwelling’s owner, internally displaced persons, etc.

Case Law on Protecting Housing Rights in Ukraine

Judicial practice in the field of housing rights protection is updated in Ukraine every year. One can only state its increase.

The most obsolete judicial position is set out in the Resolution of the Plenum of the Supreme Court of Ukraine No. 2 dated from April 12, 1985 “On some issues that have arisen within the practice of applying the Housing Code of Ukraine by the courts” (Judicial Practice, 1985). The category of housing disputes is defined in paragraph 2 of this Resolution. Thus, they include: disputes related to the lease agreement for the tenant to provide vacated housing in the apartment, where he lives, if he was denied with the provision of the premises or a warrant was issued to another person or it was transferred to another tenant who lived in the same apartment; on the refusal to issue a security certificate; on forced exchange of occupied living space; about resettlement for the period of major repairs of a house; on the refusal to provide housing, which remained after the major repairs on the recognition and loss of the right to housing; on the refusal to issue a warrant for housing to check-in into dwelling (Judicial Practice, 1985). Analyzing the above judicial position, it should be noted that it is quite outdated, since it is part of the judicial practice of Ukraine in the field of housing litigation.

More updated practice of housing disputes is summarized every two years by the Courts of Appeal of Ukraine. For example, The Summary of housing disputes for 2014-2015 made by the Court of Appeal of Kharkiv oblast, singles out the following most common housing disputes: recognition of a person as having lost the right to use housing in the absence of more than the prescribed period; claims for deregistration; eviction of family members of the property owner; moving into a dwelling; mutually exclusive requirements for eviction and recognition of a person as having lost the right to use housing; the possibility of eviction of the mortgagor from the mortgaged property without providing another dwelling by the new owner of the property. It has been noted that the problematic issues include: 1) the possibility of eviction from the mortgaged property without providing another dwelling to the mortgagor, which was purchased not at the expense of credit funds by the new owner of the property; 2) the priority of providing housing to judges within 6 months after the transfer to a new location (Judicial Practice, 2015).

The Summary of judicial practice on privatization of state housing stock and dormitories, prepared by the Supreme Specialized Court of Ukraine for civil and criminal cases and defined in the Letter of the Supreme Specialized Court of Ukraine for civil and criminal cases dated from January 12, 2017 No. 9-48/0/4-17, singled out the categories of housing disputes arising from the procedure of privatization of the state housing stock. Thus, the following most common categories have been identified: cases of obligations to privatize an apartment; cases on recognition of the right to privatize an apartment; cases on invalidation and cancellation of decisions of executive authorities, local self-government agencies on privatization of apartments in an apartment building, invalidation and cancellation of certificates of the ownership right to the apartment, registration and settlement; on elimination of obstacles in the use of common auxiliary premises of general use; on exclusion of housing from the departmental and granting the permission for privatization; cases on recognition of the ownership right according to the acquisitive prescription for rooms in a hostel; cases on cancellation of the decision of the privatization agency to refuse in the privatization of a room in a dormitory; cases on removing obstacles to housing privatization; cases on the obligation to take the apartment into the municipal property of the city, to credit it, to resolve the issue of privatization. It has been emphasized that the cases on privatization of state housing and dormitories constitute a small part of the total number of cases in the field of housing legal relations or cases on the ownership right, which were in the court proceedings of the first and appellate instances for the last three years (2014-2017). This provision is due to the fact that citizens in Ukraine have been allowed to realize their housing rights by privatizing the housing they occupy since 1992. Most of these premises have been lawfully privatized, and their number has decreased significantly (Judicial Practice, 2017).

Eviction cases constitute a separate category of housing cases. It should be noted that this category of cases as a result of review by the Civil Court of Cassation within the Supreme Court in 2018 overturned the decisions of previous instances in 33.9% of cases, and in 2019 – in 36.4% of cases. The most common grounds for an eviction dispute are:

1. Change of a dwelling’s owner (the very fact of the owner’s change is not an automatic reason for eviction in any transaction);

2. Termination of the right to use housing by the former family member (termination of family relations with the homeowner does not automatically deprive the former family member of the right to use this housing, and if the person continues to live in the apartment, it is impossible to evict him forcefully, it is necessary to resolve the dispute taking into account the balance of interests of both parties);

3. Eviction from the dwelling, which is the subject of the mortgage and purchased by a mortgagor not only at the expense of credit funds;

4. The fact that the child does not live in the disputed apartment (is not an unconditional ground for depriving him or her of the right to use this housing);

5. Eviction of co-owners from housing (it is impossible to deprive the owner of the right to use housing or recognize him as a person who lost the right to use housing);

6. Eviction of persons who lived in the house inherited by the new owner (the change of the owner in such disputes does not always mean the automatic deprivation of the right to live of other persons who lived there before);

7. Forced eviction in case of domestic violence (physical, financial or psychological) (there should be a systematic nature of such actions in the relevant disputes – two or more facts of such cases) (Supreme Court, 2021). The Review of judicial practice of the Civil Court of Cassation within the Supreme Court (current practice) was published in 2020 (Decisions entered into the Unified State Register of Judgments for June 2020) dated from July 27, 2020. This Review also singles out disputes related to housing legal relations and defines the following legal positions:

8. If the new owner of the dwelling (house), which was purchased at public auction, cannot use his property, because the former owner of this dwelling refuses to move out of it, the violated right of the new legal owner is subject to protection by removing obstacles to realize the ownership right in case of eviction of the former owner;

9. The fact of the transfer of the ownership right of housing to another person cannot be the ground for eviction of family members of the previous homeowner, if the parties to the relevant agreement on the alienation of housing acted in bad faith during its conclusion (Judicial Practice, 2021).

Having analyzed the judicial practice in the field of housing protection, it is worth paying attention to the Resolution of the Supreme Court of Ukraine of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated from August 5, 2020 in case No. 438/887/16-ts. It defines the legal position on the protection of housing rights in case of housing breakdowns. The content of the case is as follows: the court of the first instance denied the claim for the obligation of the executive committee of the City Council to provide suitable living space for permanent use to a spouse upbringing two children with disabilities of the II group instead of an apartment with a living area of 15.1 square meters (3.77 sq. m per a family member), which has been in a state of failure after the fire since 2004, and the Court of Appeal overturned this decision and ordered the defendant to restore the apartment to proper conditions. The Supreme Court of Ukraine while considering this case stated the position that citizens in case of housing’s state of failure should be provided with housing from the housing stock for temporary residence, which meets the sanitary and technical requirements for living space established for citizens to live in dormitories until their living space is repaired for habitable condition or providing another comfortable room. The dispute arose over housing that belonged to municipal property, and therefore, local self-government agencies should carry out major repairs of such housing, and in case of its state of failure to provide other housing for living. Such actions were not performed, and therefore the court rightly determined that omission and improper failure to perform their direct duties under the law by the defendant, in particular to bring the house (apartment) in a habitable condition, led to the deprivation of the plaintiffs’ family of adequate housing (Judicial Practice, 2020).

The peculiarity of the protection of housing cases is indicated by the already separately formed category of cases in disputes arising in the field of housing and public utility services. Nowadays there is no clear position to correlate this category of disputes with housing ones, because the lack of utilities in housing given the climatic conditions of Ukraine may indicate about the state of inadequacy, non-compliance with housing standards, and therefore indicates the restrictions and sometimes deprivation of the right to housing. Based on the Review of the practice of the Civil Court of Cassation within the Supreme Court, we can distinguish the following disputes in this area: on the provision of services for the supply and distribution of electricity; on the provision of heat supply services; legal consequences of unauthorized disconnection of consumers from the district heating network; on the provision of centralized water supply and sewerage services; regarding the periodic verification, maintenance and repair of apartment’s water meters; on the termination of water supply in case of late payment by the consumer for the services provided to him (Judicial Practice, 2020).

Summarizing the above, it should be noted that the judicial practice in the field of housing rights protection is quite ambiguous. Sometimes evaluative decisions are made, because one can find a tendency of wider application of the Art. 8 of the European Convention on Human Rights and the relevant decisions of the European Court of Human Rights on its application. The broad approach to the interpretation of this norm by the European Court of Human Rights does not always coincide with the norms of national legislation, and therefore the courts of Ukraine sometimes slowly apply European practice. The above emphasizes the need to determine the judicial position on the correlation of the Art. 8 of the European Convention on Human Rights, the decisions of the European Court of Human Rights on its application with the norms of national law regulating housing legal relations.

Besides, it should be noted that housing disputes remain quite common in judicial practice, in particular disputes concerning: privatization of housing, forced eviction; acquisition of the right to housing; safety of housing stock; termination of the housing lease agreement; termination of easement for residence; provision of housing and public utility services.

Methods of Protecting Housing Rights

Regarding the methods of protecting civil rights, the Supreme Court of Ukraine determined in its letter dated from April 4, 2014 that the Civil Legislation does not contain a definition of the concept of methods of protecting civil rights and interests. According to their purpose, they can be considered as the mechanism of material and legal means of protection of civil rights and interests determined by law, which is enforced by a court decision in case of their violation or real danger of such violation (Judicial Practice, 2014). The Court notes that Part 2 of the Art. 16 of the Civil Code of Ukraine define the methods of judicial protection of civil cases, i.e.,the methods can be more broadly interpreted and cover the methods that follow from the application of a non-jurisdictional form of protecting the rights.

Methods of judicial protection of civil rights that can be used in the judicial protection of housing rights are enshrined in Part 2 of the Art. 16 of the Civil Code of Ukraine. These include:

1) Recognition of the right

2) Recognition of the transaction as invalid

3) Termination of the action that violates the right

4) Restoration of the situation that existed before the violation

5) Compulsory performance of duty in kind

6) Change of a legal relation

7) Termination of a legal relation

8) Compensation for damages and other methods of reimbursement for property damage

9) Compensation for moral (non-pecuniary) damage

10) Recognition of illegal decisions

Actions or omissions of state authorities, a government agency of the Autonomous Republic of Crimea or a local self-government agency, their officers and officials (Law, 2003). The above list is not exhaustive.
It should be noted that the courts may also use methods not defined by civil law in order to protect housing rights. An example of this is the decision of the Supreme Court of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation dated from December 22, 2020 in case No. 750/8002/19. The essence of the case is as follows. The plaintiff in the case is a combatant who has 33 years of service in the Armed Forces of Ukraine and lives in official housing. He addressed the executive committee of the city council with a request to transfer the dwelling where he lives to him by excluding this apartment from the number of official dwellings. He substantiated the petition by the fact that he is registered as a citizen in need for improving living conditions, and therefore, in accordance with the requirements of the law, has the right to receive housing for permanent residence. He was rejected by the executive committee, so he filed a motion to the court. The third party in the case was the apartment maintenance department, which submitted a request to remove the apartment from the number of service dwellings. The City Executive Committee substantiated its refusal to exclude the apartment from the office housing by the fact that the apartment maintenance department provided insufficient grounds in its application, in particular, did not mention the need for its further use. The City Executive Committee noted that since the Ministry of Defense of Ukraine had not been liquidated, then there was the need for further use of the apartment as official one. Herewith, a mandatory condition for the exclusion of apartments from the number of service dwellings is the stay of servicemen and persons discharged to reserve or retired, on the housing register in the Armed Forces of Ukraine and the compliance of the occupied housing with the legislation established for this locality, which can be the basis for withdrawal of serviceman’s family from housing registration. The Supreme Court while assessing the disputed legal relations assumed that the court had the right to oblige the agency to take certain actions that would guarantee the protection of human rights and freedoms, as the Universal Declaration of Human Rights of 1948 provides that everyone has the right to effective restoration of the rights by competent national courts in cases of violation of the fundamental rights granted by the Constitution or law (the Art. 8). Thus, as a result of the defendant’s omission, the plaintiff is actually deprived of the opportunity to realize his housing rights, which is the violation of housing rights within the meaning of the Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that everyone has the right to respect own private and family life, own dwelling and correspondence. State authorities may not interfere into the realization of this right unless the interference is carried out in accordance with the law and is necessary in a democratic society in the interests of national and public security or the economic well-being of the country, for preventing riots or crimes, for protecting health or morality or for protecting the rights and freedoms of others (Judicial practice, 2020).

It is necessary to emphasize the peculiarity of the application of protection methods in the field of disputes concerning the provision and consumption of housing and public utility services. Thus, it is determined that in case of refusal of the energy supply organization or a consumer to enter into a contract for the supply of electricity that meets the requirements of a standard contract, such a right is subject to protection by the court on the basis of paragraph 1, Part 2 of the Art. 16 of the Civil Code of Ukraine by recognizing the contract concluded on the terms provided by the normative act of binding effect. The plaintiff in such a dispute must prove the conditions under which the parties are obliged to enter into such an agreement. But the requirement of the obligation not to violate the rights of the consumer in the future is not subject to satisfaction, since the current legislation does not provide such a method of protection. It is also applied to the requirement to declare illegal the actions of employees of the energy supply organization to conduct an extraordinary technical inspection of the correctness of the electricity meter in regard to draw up a report on violations and the minutes on violations and billing for unaccounted electricity consumption. Therefore, they are not subject to judicial review (Judicial Practice, 2020).

It follows that the methods of protecting housing rights can be realized within the jurisdictional and non-jurisdictional form. Methods of protecting housing rights are sometimes broader than methods for protecting civil rights, although these categories are interrelated.

Conclusion

Studying the protection of housing rights once again emphasizes the relevance and urgency of this issue for both scholars and legal practitioners. There is currently a sufficient amount of materials of judicial practice in Ukraine in the field of housing rights protection, which require scientific research and judicial generalization. The contradiction of court decisions in cases on protection housing rights is due to the following factors: inconsistency of the norms of civil and housing legislation; court cases hearings without application of the Art. 8 of the European Convention on Human Rights, judgments of the European Court of Human Rights in the field of housing rights protection; failure of establishing the concept of balance of interests between a homeowner and other participants in housing legal relations at the legislative level; not enshrining the concept, essence of housing rights protection and methods of protecting housing rights in the norms of housing legislation. The problem of housing rights protection is strengthened by the dispersion of housing legislation, the lack of its systematization.

It has been determined that there is an equation of protection and security of housing rights in international and national legislation Protection of housing rights is a different category from the protection of civil rights. The protection of housing rights in a broad sense, includes: meeting the housing needs of persons who cannot meet it on their own due to financial situation, illness, unemployment; acquisition of the right to social housing (homeless, internally displaced persons, orphans); creating conditions to prevent homelessness; commitments to overcome housing accidents; protection against forced eviction; ensuring stable and safe use of housing; measures to combat domestic violence in case of deprivation of housing as a form of economic violence in the family; restoration, recognition of housing rights and reimbursement in case of their violation. Housing disputes include disputes on: housing privatization, forced eviction; acquisition of the right to housing; safety of housing stock; termination of the housing lease agreement; termination of easement for residence; provision of housing and public utility services. Methods to protect housing rights can be implemented within the jurisdictional and non-jurisdictional form.

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