In what cases can the right to use a dwelling be state-registered?

The Administrative Collegium of the Supreme Court of the Republic of Azerbaijan has adopted a decision establishing a unified court practice regarding the state registration of the right to use a dwelling.

Information on this was provided by the Supreme Court.

It was stated that, according to the circumstances of the case, the plaintiffs demanded the state registration of their right to use a garden house located in Novkhani village of Absheron district, but the administrative body did not grant the request, stating that the registration of this right was not provided for in the legislation. Although the court of first instance considered the claim well-founded and noted that the right of use should be registered in the registry, the court of appeal approached the dispute from a different perspective, arguing that the plaintiffs' right of use arose from family relations and therefore was a right that should not be registered, thus not considering registration in the state registry necessary.

The Supreme Court, however, applying a different legal approach to the dispute, emphasized that the right of ownership is not absolute and its exercise must be ensured on the basis of a fair and reasonable balance with the rights and interests of other persons. In this regard, when evaluating the right to use a dwelling, not only its basis of origin but also its legal essence and the function it performs must be taken into account. Referring to the legal positions formed by the Constitutional Court, the court collegium noted that the right of use provided for in Article 228 of the Civil Code is essentially a limited real right and has the character of a servitude.

The Supreme Court explained that the main difference between the right of use arising under Article 228.5 of the Civil Code and other types of servitudes lies in its form of origin, but this does not change the essence of the right. Such a right acts as a personal servitude and serves to meet the housing needs of a specific person. This right cannot be alienated, is not inherited, but allows the right holder to use the dwelling and demand the elimination of any infringement of this right.

The court collegium also noted that the registration of such rights in the state registry of immovable property serves to more reliably protect the rights of right holders, and at the same time, to inform third parties about existing encumbrances on the property and to ensure legal certainty in civil circulation. In this regard, the administrative body's refusal to register was assessed as contrary to the requirements of the legislation and the legal positions of the Constitutional Court.

Ultimately, the Supreme Court granted the plaintiffs' cassation appeal, annulled the decision of the court of appeal, and imposed an obligation on the administrative body regarding the state registration of the plaintiffs' right to use the garden plot.