To the question on the eviction of the inhabitants when foreclosure of the mortgaged property

Abstract

The article is devoted to the controversially regulated by the legislation of Ukraine question of the eviction of the inhabitants from the dwellings, apartments, and other hebitable dwellings that are foreclosed by the creditor-mortgagee in connection with the debtor's infraction of the obligation ensured by mortgage of this property. It is emphasized, that courts on the execution of the provisions of the Law of Ukraine «On Mortgage» when foreclosure by the creditor of such mortgaged property as housing, counting upon Part 2 of Art. 109 of the Housing Code of the Ukrainian SSR, taking into account amendments by the laws of Ukraine «On Mortgage» and «On Amendments to Some Legislative Acts of Ukraine on Regulation of Relations between the Lender and Consumers of Financial Services», refuse to evict persons living in mortgaged housing having no possibilities to fulfill the requirement established by the legislator – to point out in the court decision the permanent accommodation provided to the persons being evicted. The availability of such a legal mechanism as making the eviction of citizens impossible without the provision of other habitable dwelling, which should be specified in the court's decision, contrary to the interests of the new home owner of dwelling, to which foreclosure has been levied. It is proved that the provisions of the Law of Ukraine «On Mortgage» are counted on regulation of relations in the conditions of the market economy, where dwelling houses and apartments being owned by the persons on the right of their ownership, are the subject of mortgage and, accordingly, such property in the case of infraction by the debtor provided with mortgage obligation foreclosured. The provisions of the Housing Code of the Ukrainian SSR (with the exception of Chapters 5 and 6 of Section III) are counted on the regulation of distributive relations, that is, regulation of relations in the state housing stock between the state as the owner of the housing stock and citizens as persons entitled to receive free housing for the permanent residence there as tenants and family members of the tenant. It is emphasized that the provisions of Article 109 of the Housing Code of the Ukrainian SSR, which is entitled «Evictions from the Habitable Dwelling», are set out in Ch. 2 of Section III of the Housing Code of the Ukrainian SSR, namely,«Use of Residential Premises of the State and Public Housing Stock» and are designed to evict tenants from the state housing stock. In connection with this, the latter cannot be applied to the housing that has a different legal regime. Only housing owned by the mortgagor under private property rights can be transferred to mortgage and therefore belongs to a private housing stock