Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of sub-Item 2.1.2 and Item 3 of
the Procedure for Hand-over of Houses to the
Societies which was confirmed by Government of the
Republic of Lithuania Resolution No. 852 "On the
Procedure for the Implementation of the Republic
of Lithuania Law on Societies of Many-flat Houses"
of 15 June 1995 with Part 3 of Article 20 of the
Republic of Lithuania Law on Societies of
Many-flat Houses
Vilnius, 23 June 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned-the Government
of the Republic of Lithuania-Jolanta Bernotaitė,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 3
June 1999 in its public hearing conducted the investigation of
Case No. 11/98 subsequent to the petition submitted to the
Court by the petitioner-the Vilnius City Court of the First
District-requesting to investigate if sub-Item 2.1.2 and Item 3
of the Procedure for Hand-over of Houses to the Societies which
was confirmed by Government of the Republic of Lithuania
Resolution No. 852 "On the Procedure for the Implementation of
the Republic of Lithuania Law on Societies of Many-flat Houses"
of 15 June 1995 were in conformity to Part 3 of Article 20 of
the Republic of Lithuania Law on Societies of Many-flat Houses.
The Constitutional Court
has established:
I
On 21 February 1995, the Seimas adopted the Republic of
Lithuania Law on Societies of Many-flat Houses (Official
Gazette Valstybės žinios, 1995, No. 20-449, No. 106-2353;
hereinafter referred to as the Law), Part 3 of Article 20
whereof provides: "After the regulations of the society have
been registered officially, the local government, enterprise,
institution or organisation at whose disposal the
dwelling-house (houses) is (are) must, within one month and
under the established procedure, hand over the dwelling-house
(houses) to the society for the purpose of its (their)
management and utilisation. On receiving the house, the society
shall decide the issue of reconsideration of the agreements of
the residents with the organisation maintaining the house and
conclusion of new agreements of the society."
The Seimas recommended in Article 3 of its 23 February
1995 Resolution "On the Implementation of the Republic of
Lithuania Law on Societies of Many-flat Houses" (Official
Gazette Valstybės žinios, 1995, No. 20-450) that the Government
approve the procedure for hand-over of houses to societies
until 30 April 1995.
The Government by the Resolution "On the Procedure for the
Implementation of the Republic of Lithuania Law on Societies of
Many-flat Houses" of 15 June 1995 confirmed the Procedure for
Hand-over of Houses to the Societies (Official Gazette
Valstybės žinios, 1995, No. 51-1269; 1996, No. 10-259;
hereinafter referred to as the Procedure).
Sub-Item 2.1.2 of the Procedure stipulates that by the
decision of the mayor (board) of a municipality (local
government) or that of the governing body of an enterprise,
institution or organisation the premises of common use
belonging to all the owners of the living quarters of the
many-flat house by the right of common shared property shall be
handed over gratis to the society for the purpose of their
management and utilisation, provided these premises "were
installed in the course of the construction of the
dwelling-house, while the expenses of their construction
(installation) are calculated into the price of 1 m2 of the
general (useful) space of the living quarters and which were
provided for the common use in the plan documents or when they
were constructed (installed) by the means of the members of the
society of the dwelling-house.
In case the plan documents of the construction of the
house (houses), or the technical documents of the
reconstruction or major repairs indicating that non-dwelling
premises are designed for the users of the flats as accessories
are lost, a commission must be formed including the parties
concerned (the mayor (board) of the municipality (local
government) or the governing body of the enterprise,
institution, organisation, and the society of the owners of the
house) and the representatives of the institution of property
register. After the agreement has been concluded between the
parties, the commission shall register it officially by a
corresponding act, which is binding for both interested
parties. Arising disputes may be decided by judicial
procedure."
Item 3 of the Procedure points out that "non-dwelling
premises shall not be handed over to the societies in cases
when:
3.1. the plan documents of the construction of the
dwelling-house (the act of handing the house over for
utilisation), technical documents of the reconstruction or
major repairs of the house do not indicate that the
non-dwelling premises are designed for the users of the
premises of the house as accessories of the said premises;
3.2 the non-dwelling premises were installed under
different estimate of construction, that of reconstruction or
that of major repairs and that these estimates did not provide
that the non-dwelling premises are designed for the users of
the premises of the house as premises of common use".
The petitioner requests to decide whether sub-Item 2.1.2
and Item 3 of the Procedure for Hand-over of Houses to the
Societies which was confirmed by Government Resolution No. 852
"On the Procedure for the Implementation of the Republic of
Lithuania Law on Societies of Many-flat Houses" of 15 June 1995
were in conformity to Part 3 of Article 20 of the 21 February
1995 Law on Societies of Many-flat Houses.
II
The request of the petitioner is grounded on the following
arguments.
Part 3 of Article 20 of the Law provides that after the
regulations of the society of the owners of many-flat houses
(hereinafter referred to as the society) have been registered
officially, the local government must, within one month and
under the established procedure, hand over the dwelling-house
to the society for the purpose of its management and
utilisation. Article 1 of the Law notes that the house shall be
a detached building bound by the common engineering facilities
from the foundations to the roof, and by the premises of common
use and, in addition, a land plot must be attributed to it.
Sub-Item 2.1.2 and Item 3 of the Procedure confirmed by
the Government provide for the conditions under which part of
the premises of the house are not handed over. Thus the
Procedure provides for the exceptions to the Law. This gives
grounds to presume that the provisions of the Procedure whereby
only certain premises but not all the house are handed over to
the society contradict Part 3 of Article 20 of the Law.
III
In the course of the preparation of the case for the
Constitutional Court hearing the representative of the party
concerned J. Bernotaitė presented the following
counter-arguments.
Under Article 1 of the Law, the house shall be a detached
building bound by the common engineering facilities from the
foundations to the roof, and by the premises of common use and,
in addition, a land plot is or must be attributed to it. Part 2
of Article 20 of the Law provides that the society is entitled
to manage and utilise the premises, house constructions and
engineering facilities of common use. Part 1 of Article 3
provides that the society shall be a way of management of the
property belonging to the owners by the right of common
property in many-flat houses. Thus, under the Law, hand-over of
the house to the society is hand-over of the premises of common
use, the engineering facilities of common use, and the house
constructions of common use to the society.
Under Article 1 of the Law, premises of common use shall
be premises not ascribed to individual owners (corridors,
stairways, halls, lofts, cellars, semi-cellars) which do not
have any direct functional link with the premises of these
owners. Thus, under the Law, the premises ascribed to
individual owners and which have a direct functional link with
the premises of these owners are not handed over to the
society. Item 3 of the Procedure points out which premises of
the dwelling-house are ascribed to individual owners. Under
Article 1 of the Law, these premises are not premises of common
use and they are nor handed over to the society. Sub-Item 2.1.2
of the Procedure provides which premises are not ascribed to
individual owners, thus under Article 1 of the Law they are to
be treated as premises of common use and they are handed over
to the society.
On the grounds of such arguments, the representative of
the party concerned contends that sub-Item 2.1.2 and Item 3 of
the Procedure are in conformity to Part 3 of Article 20 of the
Law.
IV
During the judicial investigation the representative of
the party concerned virtually reiterated her counter-arguments
set forth in written explanations.
V
In the course of the preparation of the case for the
judicial investigation, written explanations by R. Ruškytė,
Head of the Division for Legal Affairs and Law and Order of the
Chancery of the Government, Assoc. Prof. V. Staskonis who works
at the Law Faculty of Vilnius University, S. Šiupšinskas,
Director of the Administration of the Association of Local
Governments, Assoc. Prof. D. Ambrasienė, Head of the Civil and
Commercial Law Department of the Law Academy, and Prof. J.
Bivainis, Director of the Institute for Economy and
Privatisation, were received wherein it is maintained that
sub-Item 2.1.2 and Item 3 of the Procedure are in conformity to
Part 3 of Article 20 of the Law.
Alongside, a written explanation of J. Aleksaitė, Director
of the Law Department at the Ministry of Justice, wherein it is
maintained that by sub-Item 2.1.2 and Item 3 of the Procedure
the Government, by establishing the conditions of hand-over of
houses to the societies, interpreted the norms of the Law in an
extended manner.
The Constitutional Court
holds that:
1. Part 3 of Article 20 of the 21 February 1995 Law on
Societies of Many-flat Houses prescribes: "After the
regulations of the society have been registered officially, the
local government, enterprise, institution or organisation at
whose disposal the dwelling-house (houses) is (are) must,
within one month and under the established procedure, hand over
the dwelling-house (houses) to the society for the purpose of
its (their) management and utilisation. On receiving the house,
the society shall decide the issue of reconsideration of the
agreements of the residents with the organisation maintaining
the house and conclusion of new agreements of the society."
When deciding whether sub-Item 2.1.2 and Item 3 of the
Procedure for Hand-over of Houses to the Societies are in
conformity to Part 3 of Article 20 of the Law, it is important
that one elucidate the content of these norms and, in
particular, how the provision "to hand the dwelling-house over
to the society for the purpose of its management and
utilisation" that is formulated in this part is to be
understood.
2. Disputing the compliance of sub-Item 2.1.2 and Item 3
of the Procedure to the Law, the petitioner points out that
under Part 3 of Article 20 of the Law, the local government,
enterprise, institution or organisation under whose supervision
the dwelling-house is must, within one month from the official
registration of the regulations of the society, hand the house
over to the society for the purpose of its management and
utilisation. In the opinion of the petitioner, the fact that
the whole house must be handed over ensues from the definition
of the term house given by Article 1 of the Law: "the house
shall be a detached building bound by the common engineering
facilities from the foundations to the roof, and by the
premises of common use and, in addition, a land plot must be
attributed to it".
As a rule, when the content of legal norms is revealed, it
is not enough to apply only the linguistic method of
construction. Various methods of construction of law are known
in the legal theory, i.e. linguistic, systematic, historical,
comparative etc. It is possible to reveal the meaning of
individual notions used in the law by elucidating the purpose
of the law, the nature and scope of the relations regulated by
it, the peculiarities of the regulation etc. It is possible to
do so by applying various methods of construction of the law,
and systematic among them, as every legal norm is a constituent
part of an integral legal act (in this case that of the Law)
and is linked with the other norms of this legal act.
3. The Law regulates the activity of societies of the
owners of many-flat houses that manage the property belonging
by the right of common ownership. Under Article 4 of the Law,
the owners of the living quarters and non-dwelling premises
shall found a society the aim of which shall be supervision,
repair, other maintenance and exploitation of the premises of
common use, engineering facilities of common use and house
constructions of common use, as well as maintenance of the
surroundings (the attributed land plot), fulfilment of regular
payment obligations, and safeguard of other common rights and
interests.
Part 1 of Article 20 of the Law provides that the house
premises of common use, engineering facilities of common use
and house constructions of common use shall belong to all the
owners of the house by the right of common shared property. The
share of every owner in the common property is proportionate to
the space of the premises belonging to him by the right of
ownership. Under Part 2 of Article 20, the society shall be
entitled to manage and utilise the premises, engineering
facilities and house constructions of common use.
Thus, under the Law, the society manages and utilises only
the premises of common use, engineering facilities of common
use and house constructions of common use belonging to the
members of the society by the right of common shared property.
Meanwhile, the living quarters and non-dwelling premises (i.e.
those that are not of common use) belonging to natural and
legal persons by the right of ownership are managed, used and
disposed of by the owners of these quarters and premises
themselves. The right of ownership of the owners of living
quarters and non-dwelling premises to the quarters and premises
belonging to them is safeguarded by the Constitution and the
laws. Civil law defines the content of the subjective right of
the owner to property by singling out the right of the owner to
manage, use and dispose of his property. It needs to be noted
that the Constitution and the laws protect and safeguard the
rights of owners irrespective of the fact whether there is the
society in a many-flat house or whether there has not been
founded such a society yet. Foundation of the society does not
mean that the subjects of private and public property lose
their right to the property belonging to them, therefore
foundation of the society does not give reason by itself to
restrict or otherwise limit the rights and legitimate interests
of the owners.
The provision whereby the dwelling-house is handed over to
the society for the purpose of its management and utilisation
as consolidated in Part 3 of Article 20 of the Law does not
mean the all the premises which are in the house are handed
over to the society for the purpose of their management and
utilisation. For instance, living quarters and non-dwelling
premises belonging to natural and legal persons by the right of
ownership may not be handed over to the society for the purpose
of their management and utilisation. Constructing only
linguistically the norm of Part 3 of Article 20 of the Law
whereby the dwelling house (houses) shall be handed over to the
society for the purpose of its (their) management and
utilisation, one might assert that not only the premises of
common use, house constructions of common use and engineering
facilities of common use but also the living quarters and
non-dwelling premises (of not common use) belonging to natural
and legal persons by the right of ownership must be handed over
to the society. In such a case, however, there would be such a
legal situation when the subjective rights of ownership of the
owners of the living quarters and non-dwelling premises would
be violated. Therefore in this case the linguistic construction
of the said legal norm is not sufficient.
The legal norm contained by Part 3 of Article 20 of the
Law whereby the dwelling-house (houses) must be handed over to
the society is to be construed by one's taking account of the
norms set forth in Article 4 and Parts 1 and 2 of Article 20 of
the Law which establish for what purpose the societies are
founded and what property is handed over to them for the
purpose of its management and utilisation, as well as by one's
paying heed to the constitutional guarantees of the protection
of property.
Taking account of the arguments set forth, the legal norm
worded in Part 3 (in the first sentence thereof) of Article 20
of the Law regulating hand-over of the dwelling-house to the
society for the purpose of its management and utilisation is to
be interpreted as a norm designed to implement the norms of
Parts 1 and 2 of Article 20 of the Law establishing what
particular property which is in the house the society is
entitled to manage and utilise, which is only the premises of
common use, house constructions of common use and engineering
facilities of common use.
It is possible to hand over the premises of common use,
house constructions of common use and engineering constructions
of common use to the society only after the house has been
handed over to the society. As mentioned, under Article 1 of
the Law, the house shall be a detached building bound by the
common engineering facilities from the foundations to the roof,
and by the premises of common use and, in addition, a land plot
is or must be attributed to it. In the house there may be
living quarters and non-dwelling premises of varied purpose
that belong to various subjects of private and public property
by the right of ownership. Therefore the provision "hand-over
of the dwelling-house" of Part 3 of Article 20 of the Law is to
be interpreted as hand-over of the house (i.e. the building) to
the society so that it might utilise, repair and maintain the
premises of common use, engineering facilities of common use
and house constructions of common use (Article 4 and Part 3 of
Article 9 of the Law) but not as hand-over of all the premises
of the house to the society. The living quarters and
non-dwelling premises which are in the house (i.e. premises of
not common use) which belong to the owners by the right of
ownership are not handed over to the society. A different
construction of the said provision would violate the subjective
rights of ownership of the owners of the living quarters and
non-dwelling premises.
4. The Government confirmed the Procedure for Hand-over of
Houses to the Societies by its Resolution "On the Procedure for
the Implementation of the Republic of Lithuania Law on
Societies of Many-flat Houses" of 15 June 1995.
Sub-Item 2.1.2 of the Procedure stipulates that by the
decision of the mayor (board) of a municipality (local
government) or that of the governing body of an enterprise,
institution or organisation the premises of common use
belonging to all the owners of the living quarters of the
many-flat house by the right of common shared property shall be
handed over gratis to the society for the purpose of their
management and utilisation, provided these premises "were
installed in the course of the construction of the
dwelling-house, while the expenses of their construction
(installation) are calculated into the price of 1 m2 of the
general (useful) space of the living quarters and which were
provided for the common use in the plan documents or when they
were constructed (installed) by the means of the members of the
society of the dwelling-house.
In case the plan documents of the construction of the
house (houses), or the technical documents of the
reconstruction or major repairs indicating that non-dwelling
premises are designed for the users of the flats as accessories
are lost, a commission must be formed including the parties
concerned (the mayor (board) of the municipality (local
government) or the governing body of the enterprise,
institution, organisation, and the society of the owners of the
house) and the representatives of the institution of property
register. After the agreement has been concluded between the
parties, the commission shall register it officially by a
corresponding act, which is binding for both interested
parties. Arising disputes may be decided by judicial
procedure."
Assessing the norms of sub-Item 2.1.2 of the Procedure,
one is to conclude that they establish which premises of common
use are handed over to the society, as well as regulate as to
how the issues (disputes) may be solved and whether particular
non-dwelling premises are those of common use or whether they
are flat accessories.
Item 3 of the Procedure points out that "non-dwelling
premises shall not be handed over to the societies in cases
when:
3.1. the plan documents of the construction of the
dwelling-house (the act of handing the house over for
utilisation), technical documents of the reconstruction or
major repairs of the house do not indicate that the
non-dwelling premises are designed for the users of the
premises of the house as accessories of the said premises;
3.2 the non-dwelling premises were installed under
different estimate of construction, that of reconstruction or
that of major repairs and that these estimates did not provide
that the non-dwelling premises are designed for the users of
the premises of the house as premises of common use".
Assessing the legal norm contained in sub-Item 3.1 of the
Procedure, one is to pay heed to the fact that when it is
decided on the ground of the said norm whether particular
non-dwelling premises are to be regarded as being attributed to
the users of the premises as accessories to these premises, the
fact is of essential importance whether the plan documents of
the construction of the dwelling-house (the act of handing the
house over for utilisation), technical documents of the
reconstruction or major repairs of the house (as well as the
technical account file of the dwelling-house) indicate that the
non-dwelling premises are accessories to the premises
attributed to the users of the premises of house. In case such
premises are not indicated as accessories, then under sub-Item
3.1 of the Procedure they are not handed over to the society.
When it is decided on the grounds of sub-Item 3.2 of the
Procedure whether non-dwelling premises must be handed over to
the society, the fact is of essential importance whether the
non-dwelling premises were installed under different estimate
of construction, that of reconstruction or that of major
repairs and that these estimates provided that the non-dwelling
premises are designed for the users of the premises of the
house as premises of common use.
Such legal regulation as established by Item 3 of the
Procedure when hand-over of non-dwelling premises to the
society is virtually determined only by technical criteria
(i.e. an indication in the plan or technical documents, as well
as an entry in the estimate of the construction of non-dwelling
premises, or that of reconstruction or that of major repairs)
is to be considered improper from the legal point of view, as
the criteria pointed out in Item 3 of the Procedure should not
be regarded as the only possible and not subject to be
disputed. Deciding what non-dwelling premises must be handed
over to the society on the grounds of the Law, the fact is of
most importance that these premises do not belong to a
particular natural or legal person by the right of ownership
and that they are of common use as to their purpose.
5. The aim of disputed sub-Item 2.1.2 and Item 3 of the
Procedure is to define, particularising the provisions of the
Law, which non-dwelling premises which are in the house are not
regarded as premises of common use and are not handed over to
the society. The fact alone that in Item 3 of the procedure the
criteria were worded improperly from the legal point of view
and on the grounds of which the question of hand-over of
non-dwelling premises to the society is decided does not
provide a sufficient basis for a possibility to recognise the
said item of the Procedure as contradicting Part 3 of Article
20 of the Law, as under the above construction of the provision
"hand-over of the house", it is provided for in the Law that in
the course of hand-over of the house to the society for the
purpose of its management and utilisation the living quarters
and non-dwelling premises of not common use which are in the
house and which belong to the owners by the right of ownership
are not handed over to the society.
The Constitutional Court, stating about the impropriety of
the regulation which is in the Procedure, notes alongside that
the disputes whether the non-dwelling premises are of common
use, or whether the house constructions and engineering
facilities are of common use, as well as disputes concerning
hand-over of the non-dwelling premises, house constructions and
engineering facilities of common use to the society, as well as
concerning exploitation, repairs etc. of the non-dwelling
premises, house constructions and engineering facilities of
common use, ought to be decided under judicial procedure
(Articles 4 and 6 of the Republic of Lithuania Civil Code).
Violated rights may be defended in court regardless of the fact
whether this right guaranteed by the Constitution is mentioned
in a law or substatutory act or not.
Thus, taking account of the interpretation of the norms of
the Law presented in this Ruling, as well as other arguments, a
conclusion is to be drawn that sub-Item 2.1.2 and Item 3 of the
Procedure confirmed by the Government resolution are in
compliance with Part 3 of Article 20 of the Law.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that sub-Item 2.1.2 and Item 3 of the
Procedure for Hand-over of Houses to the Societies which was
confirmed by Government of the Republic of Lithuania Resolution
No. 852 "On the Procedure for the Implementation of the
Republic of Lithuania Law on Societies of Many-flat Houses" of
15 June 1995 are in compliance with Part 3 of Article 20 of the
Republic of Lithuania Law on Societies of Many-flat Houses.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.