Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Paragraph 1 of Article 16,
Paragraphs 1 and 2 of Article 17, Article 19 of
the Republic of Lithuania Law on the Associations
of Apartment House Owners (wording of 21 February
1995) and Paragraphs 4 and 7 of Article 27 of this
law (wording of 20 June 2000), as well as Sections
1, 3 and 4 of Item 8 and Section 1 of Item 10 of
the Standard Regulations of Associations of
Apartment House Owners approved by Government of
the Republic of Lithuania Resolution No. 852 "On
the Procedure of Enforcement of the Republic of
Lithuania Law on the Associations of Apartment
House Owners" of 15 June 1995 with the
Constitution of the Republic of Lithuania
Vilnius, 21 December 2000
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 Seimas of
the Republic of Lithuania-Darius Karvelis, a consultant to the
Law Department of the Office of the Seimas,
the representative of the party concerned-the Government
of the Republic of Lithuania-Vytautas Jonaitis, Deputy Director
of the Department for Dwelling and Output Rates Setting at the
Ministry of Environment of the Republic of Lithuania,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
12 December 2000 in its public hearing conducted the
investigation of Case No. 8/99 subsequent to the petition
submitted to the Court by the Vilnius City Court of the First
District requesting to investigate whether Paragraph 1 of
Article 16, Paragraphs 1 and 2 of Article 17 of the Republic of
Lithuania Law on the Associations of Apartment House Owners
(wording of 21 February 1995), as well as Sections 1 and 3 of
Item 8 and Section 1 of Item 10 of the Standard Regulations of
Associations of Apartment House Owners approved by Government
of the Republic of Lithuania Resolution No. 852 "On the
Procedure of Enforcement of the Republic of Lithuania Law on
the Associations of Apartment House Owners" of 15 June 1995,
were in compliance with Paragraphs 1 and 2 of Article 35 of the
Constitution of the Republic of Lithuania, and whether Article
19 of the said law was in compliance with Article 23 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-the Vilnius City Court of the First
District-was investigating a civil case on adjudgment of
entrance fees and payments for public utilities to an
association of apartment house owners. By its ruling of 18
March 1999, the said court suspended the investigation of the
case and appealed to the Constitutional Court with a petition
requesting to investigate whether Paragraph 1 of Article 16,
Paragraphs 1 and 2 of Article 17 of the Republic of Lithuania
Law on the Associations of Apartment House Owners (wording of
21 February 1995; Official Gazette Valstybės žinios, 1995, No.
20-449; hereinafter also referred to as the Law), as well as
Sections 1 and 3 of Item 8 and Section 1 of Item 10 of the
Standard Regulations of Associations of Apartment House Owners
(hereinafter also referred to as the Regulations) approved by
Government of the Republic of Lithuania Resolution No. 852 "On
the Procedure of Enforcement of the Republic of Lithuania Law
on the Associations of Apartment House Owners" of 15 June 1995
(Official Gazette Valstybės žinios, 1995, No. 51-1269), were in
compliance with Paragraphs 1 and 2 of Article 35 of the
Constitution, and whether Article 19 of the said law was in
compliance with Article 23 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
1. Article 16 of the Law on the Associations of Apartment
House Owners (wording of 21 February 1995) provides: "Members
of the association are owners of the premises contained in the
houses. <...> The owners of the premises of a house shall
acquire the rights and duties of the members of association as
of the date of the registration of the regulations of the
association or as of the date of the occurrence of the
ownership rights to the premises in the house belonging to the
association." Paragraph 1 of Article 17 of the Law provides
that the membership of a person in the association shall
terminate when the member looses his right of ownership to all
residential and non-residential premises held by him in the
association, while Paragraph 2 thereof provides that upon
selling the premises by a member of association or upon
transferring them in any other way, as well as upon his death,
the person who has acquired or inherited the said premises
shall become a member of the association. It is established in
Articles 5 and 6 of the aforesaid law that in order to
establish an association of apartment house owners, the meeting
of the owners is called. The constituent meeting is deemed
lawful if attended by not less than 1/2 of the owners. The
resolutions in the constituent meeting are adopted by a regular
majority of votes.
In the opinion of the petitioner, the entirety of the said
norms created the basis for a situation when a decision to
establish an association of apartment house owners may be
adopted against the will of individual apartment owners. They,
against their will, are regarded as members of the established
association of apartment house owners, if the meeting of
apartment house owners adopts a decision to establish such an
association. The members of this association may leave it only
upon transfer the premises belonging to them in the
association, i.e. termination of the membership is not linked
with the will of the owner whether to be or not to be a member
of the association. Paragraph 2 of Article 18 of the same law
sets down the duties of a member of the association. The
following are among the other duties: observance of the
regulations of the association, fulfilment of the obligations
of the association and the resolutions of the association board
and of the bodies of control, participation in the activities
of the association, paying of the established payments and
dues. According to the petitioner, this shows that the
apartment owner is burdened with the aforementioned, including
property, duties irrespective of his will.
The petitioner notes that the said provisions of the Law
as to the membership in the association and duties of a member
of the association are repeated in Sections 1 and 3 of Item 8,
Section 1 of Item 10 and Item 12 of the Standard Regulations of
Associations of Apartment House Owners approved by Government
Resolution No. 852 "On the Procedure of Enforcement of the
Republic of Lithuania Law on the Associations of Apartment
House Owners" of 15 June 1995. Furthermore, it is directly
indicated in Section 4 of Item 8 of the Regulations that
neither an application nor consent of the owners of the
premises of the house is necessary in order to become a member
of the association.
Paragraph 1 of Article 35 of the Constitution establishes
the right of citizens to freely form societies, political
parties, and associations, provided that the aims and
activities thereof do not conflict with the Constitution and
laws, while Paragraph 2 thereof points out in a commanding
manner that no person may be forced to belong to any society,
political party, or association. According to the petitioner,
an analysis of the disputed norms of the Law (wording of 21
February 1995) and those of the Regulations permits to assume
that Paragraph 1 of Article 16 and Paragraphs 1 and 2 of
Article 17 of the Law, as well as Sections 1 and 3 of Item 8
and Section 1 of Item 10 of the Regulations, conflict with
Paragraphs 1 and 2 of Article 35 of the Constitution.
2. The petitioner points out that it is provided in
Article 19 of the Law (wording of 21 February 21) that the
property of the association shall consist of the residential
and non-residential premises and other material assets,
purchased or acquired in any other lawful manner. In the
opinion of the petitioner, one may perceive evident inaccuracy
of the said norm of the Law. This inaccuracy is manifested in
that it does not specify neither particular premises and
material assets that constitute the property of the
association, nor the persons for whose money such premises or
material assets are acquired. Under certain circumstances this
permits to recognise the residential or non-residential
premises or other material assets held by the owners of the
premises of the dwelling-house as property of the association
irrespective of the will of the owners.
The petitioner maintains that under the Law a member of
the associations must fulfil the obligations of the
association, in order to secure which, the property of the
association may be mortgaged. He must also fulfil resolutions
of the association board and the bodies of control, which may
restrict or directly infringe his right of ownership to the
material assets held in the house of the association.
In the opinion of the petitioner, Article 19 of the Law
conflicts with Article 23 of the Constitution wherein it is
guaranteed that property shall be inviolable, and it is secured
that the rights of ownership shall be protected by law and that
property may only be seized for the needs of society according
to the procedure established by law and must be adequately
compensated for.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from the
representative of the party concerned-the Seimas-D. Karvelis
were received.
1. The representative of the party concerned-the
Seimas-noted that, while analysing the norms of the Law
(wording of 21 February 1995) and those of the Regulations, one
has to pay attention to the fact that the property of the
association of apartment house owners shall consist of the
residential or non-residential premises and other material
assets, purchased or acquired in any other lawful manner
(Article 19 of the Law). The communal use premises in an
apartment house, its communal use engineering facilities, and
communal use structures shall belong to all the owners of the
house by the right of common shared ownership. The share of
each owner in the common ownership shall be proportionate to
the total area of premises held by him by the right of
ownership (Paragraph 1 of Article 20 of the Law). Thus, the
property of the association is used, possessed and disposed of
under the norms of the institute of common shared ownership.
The owners of residential and non-residential premises shall
establish associations of apartment house owners for the
purpose of maintenance, repairs and other purposes of
possession and exploitation of the communal use house premises,
communal use engineering facilities, communal use house
constructions, and for keeping in order the exterior property
area (the allotted land plot), discharging common pecuniary
obligations and protecting other common rights and interests
(Article 4 of the Law). The association of apartment house
owners is "a method of holding property which belongs to the
owners in a respective apartment house by the right of common
ownership" (Paragraph 1 of Article 3 of the Law). Article 28 of
the Constitution provides: "While exercising their rights and
freedoms, persons must observe the Constitution and the laws of
the Republic of Lithuania, and must not impair the rights and
freedoms of other people."
D. Karvelis pointed out that a person has the right to
choose as to what real property to acquire. Upon acquisition of
residential premises in an apartment house, the person must and
can anticipate that he will have to be faced with the necessity
to use the communal use premises, communal use engineering
facilities etc., i.e. the person, upon acquisition of
residential premises in an apartment house, adopts the
obligations linked thereto. This is consolidated in Paragraph 2
of Article 17 of the Law (wording of 21 February 1995): "Upon
selling the premises held by him or upon transferring them in
any other way, as well as upon his death, the person who has
acquired or inherited the said premises shall become a member
of the association." Under the law, upon acquisition of any
real property, the obligations linked thereto must be taken
over by the new owner. For example, if the right of mortgaged
property is handed over from the mortgagor to another person,
the right of mortgage persists (Article 211 of the Republic of
Lithuania Civil Code).
D. Karvelis paid heed to the fact that Article 35 of the
Constitution secures the civil rights and freedoms of people,
meanwhile the aforementioned provisions of the Law regulate the
legal relations linked with property rights and secure the
implementation of the ownership rights of the owners to
residential and non-residential premises.
The representative of the party concerned-the Seimas-is of
the opinion that a person, upon acquisition of residential
premises in an apartment house, adopts of his own free will all
the obligations linked with the premises. Thus Paragraph 1 of
Article 16 of the Law (wording of 21 February 1995) (Section 1
of Item 8 of the Regulations), Paragraphs 1 and 2 of Article 17
of the same law (Section 1 of Item 10 of the Regulations) and
Section 3 of Item 8 of the Regulations are in conformity with
Paragraphs 1 and 2 of Article 35 of the Constitution.
2. D. Karvelis noted that Article 19 of the Law (wording
of 21 February 1995) defines property of the association but
not the property of its members. The content of this norm is
particularised in Item 13 of the Regulations establishing that
the property of the association shall consist of the
residential or non-residential premises and other material
assets purchased for the money of the association or acquired
in any other lawful manner. In these norms of the Law (wording
of 21 February 1995) and the norms of the Regulations the
property of the association is clearly separated from that of
its members. The association of apartment house owners, on the
grounds of the said norms of the normative acts, does not have
any right to restrict or infringe the ownership rights of any
member of the association to residential and non-residential
premises. Therefore the representative of the party
concerned-the Seimas-is of the opinion that Article 19 of the
Law (wording of 21 February 1995) is in compliance with Article
23 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Government-V. Jonaitis, Deputy Director of the Department for
Dwelling and Output Rates Setting at the Ministry of
Environment, and V. Januškevičius, the chief specialist of the
Legal Division of the Ministry of Environment.
1. In their written explanations the representatives of
the party concerned-the Government-noted that a person acquires
premises in an apartment house of his own free will (by way of
privatisation, purchase or any other lawful way of acquisition)
and, according to Articles 122, 123, 124 and 127 of the Civil
Code and other legal acts, accepts the obligations linked with
these premises, as well as objects of communal use (staircases,
engineering facilities and constructions of the house, etc.) as
appurtenances to these premises. Thus the obtainer becomes a
joint proprietor of the objects of communal use and a de facto
member of the community of the owners of the premises of the
house. He may sell or transfer in any other way of his own free
will the premises held by him to another person, and
respectively leave the community of the owners of the house
premises.
According to the representatives of the Government, the
association of apartment house owners as a legal person only
legitimatises de jure the community of the owners of the house
premises (joint proprietors of communal use objects) and
secures, under procedure established by law, proper possession,
use and exploitation of the common property of the apartment
house, i.e. implements Article 28 of the Constitution wherein
it is established that, while exercising their rights and
freedoms, persons must observe the Constitution and the laws of
the Republic of Lithuania, and must not impair the rights and
freedoms of other people.
The representatives of the party concerned-the
Government-are of the opinion that Paragraph 1 of Article 16,
Paragraphs 1 and 2 of Article 17 of the Law (wording of 21
February 1995), Sections 1 and 3 of Item 8 and Section 1 of
Item 10 of the Regulations are in conformity with Paragraphs 1
and 2 of Article 35 of the Constitution.
2. The representatives of the party concerned-the
Government-are also of the opinion that Article 19 of the Law
(wording of 21 February 1995) is in compliance with Article 23
of the Constitution as the norm of Article 19 defines property
of the association (i.e. property acquired by the money of the
association) but not the property belonging to the members of
the association (i.e. residential and non-residential premises
which are private or common shared property of the members of
the association). Article 19 of the Law does not grant any
right for the association to restrict or infringe in any way
the ownership rights of a member of the association to
residential or non-residential premises.
V
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from D. Petrauskaitė, Acting Director of the Law
Department of the Ministry of Justice, B. Strokova, Chairperson
of the association "'Namų valda' ir Savininkai", Dr. E.
Šileikis, a senior assistant at the Faculty of Law, Vilnius
University, and an explanation from the Civil and Commercial
Law Department, Law University of Lithuania.
VI
At the Constitutional Court hearing the representative of
the party concerned-the Seimas-D. Karvelis virtually reiterated
the arguments set down in his written explanations.
At the Constitutional Court hearing the representative of
the party concerned-the Government-V. Jonaitis virtually
reiterated the arguments set down in his written explanations.
The representative of the party concerned noted that on 20 June
2000 the Law on the Associations of Apartment House Owners had
been amended and set down in a new wording (Official Gazette
Valstybės žinios, 2000, No. 56-1639), however the bases of
membership in the association had remained virtually intact.
The Constitutional Court
holds that:
I
1. On 21 February 1995, the Seimas passed the Law on the
Associations of Apartment House Owners. By its Resolution No.
852 "On the Procedure of Enforcement of the Republic of
Lithuania Law on the Associations of Apartment House Owners" of
15 June 1995, the Government approved the Standard Regulations
of Associations of Apartment House Owners.
In its ruling of 18 March 1999, the petitioner-the Vilnius
City Court of the First District-requests the Constitutional
Court to investigate whether Paragraph 1 of Article 16,
Paragraphs 1 and 2 of Article 17, Article 19 of the Law, as
well as Sections 1 and 3 of Item 8 and Section 1 of Item 10 of
the Standard Regulations of Associations of Apartment House
Owners, are in compliance with the Constitution.
Although the petitioner requests to investigate whether
whole Paragraph 1 of Article 16 of the Law (wording of 21
February 1995) is in conformity with Paragraphs 1 and 2 of
Article 35 of the Constitution, however, the Constitutional
Court, taking account of the motives presented in the petition,
will investigate the compliance of not whole Paragraph 1 of
Article 16 of the Law (wording of 21 February 1995) with
Paragraphs 1 and 2 of Article 35 of the Constitution but only
its provisions establishing the bases of membership of the
association of apartment house owners: "Members of the
association are owners of the premises contained in the
houses", "The owners of the premises of a house shall acquire
the rights and duties of the members of association as of the
date of the registration of the regulations of the association
or as of the date of the occurrence of the ownership rights to
the premises in the house belonging to the association".
2. On 20 June 2000, the Seimas amended the Law on the
Associations of Apartment House Owners and set it down in a new
wording. After the amendment of the Law, the relations which
had been regulated in the disputed articles of the Law (wording
of 21 February 1995), are regulated in the other articles of
the Law (wording of 20 June 2000).
It needs to be noted that the disputed provision of
Paragraph 1 of Article 16 of the Law (wording of 21 February
1995) whereby the owners of the premises of a house shall
acquire the rights and duties of the members of association as
of the date of the registration of the regulations of the
association or as of the date of the occurrence of the
ownership rights to the premises in the house belonging to the
association is repeated in Paragraph 4 of Article 27 of the Law
(wording of 20 June 2000), while former Paragraph 1 of Article
17 of the Law has been included into Paragraph 7 of Article 27
of the Law (wording of 20 June 2000).
3. Taking account of the fact that the petitioner raises a
question whether the provisions of the articles of the Law
(wording of 21 February 1995), which are to be applied in the
civil case investigated by the petitioner, are in conformity
with the Constitution, the Constitutional Court will
investigate the disputed provisions of Paragraph 1 of Article
16, Paragraphs 1 and 2 of Article 17, Article 19 of the Law
(wording of 21 February 1995), as well as Paragraphs 4 and 7 of
Article 27 of the Law (wording of 20 June 2000).
4. The petitioner requests to investigate whether Sections
1 and 3 of Item 8 of the Standard Regulations of Associations
of Apartment House Owners are in compliance with Paragraphs 1
and 2 of Article 35 of the Constitution, however, the
Constitutional Court, taking account of the motives presented
in the petition, will investigate the compliance of the
following provisions of Sections 1 and 3 of Item 8 of the
Regulations establishing the bases of membership of the
association of the apartment house owners with Paragraphs 1 and
2 of Article 35 of the Constitution: "Members of the
association are owners of the apartments and non-residential
premises contained in the house (houses)", "The owners of the
premises of a house shall acquire the rights and duties of the
members of association as of the date of the registration of
the regulations of the association or as of the date of the
occurrence of the ownership rights to the premises in the house
belonging to the association".
The petitioner doubts as for the compliance of Section 4
of Item 8 of the Regulations with Paragraphs 1 and 2 of Article
35 of the Constitution, however in the substantive provisions
of the ruling of the said court Section 4 of Item 8 is not
indicated.
Taking account of the motives pointed out by the
petitioner, the Constitutional Court will investigate whether
the disputed provisions of Sections 1 and 3 of Item 8 of the
Regulations, as well as Section 4 of Item 8 and Section 1 of
Item 10 of the Regulations are in compliance with the
Constitution.
II
On the compliance of the provisions of Paragraph 1 of
Article 16 as well as Paragraphs 1 and 2 of Article 17 of the
Law on the Associations of Apartment House Owners (wording of
21 February 1995), and Paragraphs 4 and 7 of Article 27 of this
law (wording of 20 June 2000) with Paragraphs 1 and 2 of
Article 35 of the Constitution.
1. Paragraph 1 of Article 16 entitled "Members of the
Association" of the Law (wording of 21 February 1995) provided:
"Members of the association are owners of the premises
contained in the houses. Each owner shall be entitled to one
vote in the association. Legal entities (local governments,
enterprises, establishments, organisations) shall be
represented by a duly authorised person. The owners of the
premises of a house shall acquire the rights and duties of the
members of association as of the date of the registration of
the regulations of the association or as of the date of the
occurrence of the ownership rights to the premises in the house
belonging to the association. A natural person who is a member
of the association may, in the prescribed manner, authorise
another person to participate in the activities of the
association on his behalf."
Paragraphs 1 and 2 of Article 17 entitled "Changes in the
Membership of the Association" of the Law (wording of 21
February 1995) provided:
"The membership of a person in the association shall
terminate when the member looses his right of ownership to all
residential and non-residential premises held by him in the
association.
Upon selling the premises by a member of association or
upon transferring them in any other way, as well as upon his
death, the person who has acquired or inherited the said
premises shall become a member of the association."
The petitioner notes that under the procedure of
establishment of the association of apartment house owners
provided for in this Law (Articles 5 and 6), a decision to
establish the association may be adopted against the will of
individual apartment owners and, after such a decision has been
adopted, all the apartment owners become members of the
established association irrespective of their will. The
beginning of the membership in the association and an
opportunity to leave the association are not linked with the
free will of a person in the disputed provisions of Articles 16
and 17 of the Law. Therefore, in the opinion of the petitioner,
they conflict with Paragraphs 1 and 2 of Article 35 of the
Constitution.
2. Article 35 of the Constitution provides:
"Citizens shall be guaranteed the right to freely form
societies, political parties, and associations, provided that
the aims and activities thereof do not conflict with the
Constitution and laws.
No person may be forced to belong to any society,
political party, or association.
The founding and functioning of political parties and
other political and public organisations shall be regulated by
law."
The constitutional right to freely form societies,
political parties and associations is manifold, its content is
composed of the right to form societies, political parties and
associations, the right to join them and take part in their
activities, as well as the right not to be a member of any
societies, political parties or associations, and the right to
leave such unions. Thus the Constitution guarantees the right
to decide of one's own free will whether to belong or not to
belong to a certain society, political party or association.
The notions "society", "political party", "association"
consolidated in Paragraphs 1 and 2 of Article 35 of the
Constitution, as well as the notion "other political and public
organisations" consolidated in Paragraph 3 of the same article,
express diversity of unions which are founded on a voluntary
basis in order to meet the needs of their members in the
political, economic, cultural, social areas and other spheres
of life. Individuals, attempting to implement their rights and
interests in the political, economic, cultural, social areas
and other spheres of life, may form various unions provided
that the aims and activities thereof do not conflict with the
Constitution and laws.
It needs to be noted that the right to freely form
societies, political parties, and associations guaranteed in
the Constitution means that an individual either implements or
does not implement this right of his own free will. Paragraph 2
of Article 35 of the Constitution stipulates expressis verbis
that no person may be forced to belong to any society,
political party, or association. This is a constitutional
guarantee protecting individuals from belonging to any union
against their will.
The free will of an individual is a fundamental principle
of his membership in various societies, political parties and
associations. This constitutional principle must be observed
when founding all types of unions and regulating their
activities and relations of their membership regardless of the
fact as to what legitimate objectives these unions are trying
to attain.
3. While deciding whether the disputed provisions of
Paragraph 1 of Article 16 of the Law (wording of 21 February
1995), as well as Paragraphs 1 and 2 of Article 17 of the same
law, which regulate the relations of membership in the
associations of apartment house owners, are in compliance with
Paragraphs 1 and 2 of Article 35 of the Constitution, one is to
take into consideration the purpose of formation of such
associations as established in the Law, the rights and duties
of the associations as well as the overall regulation of
membership relations in the association.
3.1. Particular residential and non-residential premises
in an apartment house belong to every owner by the right of
ownership, while the communal use premises in an apartment
house, its communal use engineering facilities, and communal
use structures belong to all the owners of the house by the
right of common shared ownership (Paragraph 1 of Article 20 of
the Law (wording of 21 February 1995)).
The right of ownership is one of fundamental human rights.
Its implementation presupposes certain obligations of the
owner. Ownership obligates. By this provision the social
function of ownership is expressed.
Proper exploitation and use of apartment houses is not
only a private interest of the owners but also a public
interest, therefore such relations must be regulated by
providing for various ways of implementation of the right of
common shared ownership in apartment houses. The establishment
of the association of owners is one of possible ways to
implement the right of common shared ownership.
3.2. Article 4 of the Law (wording of 21 February 1995)
provided: "The owners of residential use and non-residential
use premises shall establish associations of apartment house
owners for the purpose of maintenance, repairs and other
purposes of possession and exploitation of the common house
premises, common engineering facilities, common house
constructions, and for keeping in order the exterior property
area (the allotted land plot), discharging common pecuniary
obligations and protecting other common rights and interests."
The Law (wording of 21 February 1995) defined the
association of apartment house owners as a method of holding
property which belongs to the owners in a respective apartment
house by the right of common ownership (Paragraph 1 of Article
3). Even though the association was defined as a method of
holding property by the right of common ownership, it needs to
be noted that under this Law the association is a legal person
(Paragraph 2 of Article 3, Article 9), its activities are based
on the Law and its regulations (Article 7), its members possess
certain rights and have certain duties (Article 9), the
association has its bodies of management (Articles 10-15).
Thus, under the Law, the association of apartment house owners
is a union of joint proprietors.
3.3. While establishing the association to possess and use
the common shared property, the owners of residential and
non-residential premises contained in an apartment house
implement the constitutional right to unite in order to attain
a certain common objective. As mentioned, this constitutional
right may be implemented only on the basis of free will of
individuals. Therefore the membership in the association of
apartment house owners must be based on the principle of
voluntariness. When establishment, activities and membership
relations are regulated by a law, one must, as in cases of any
other unions, observe the requirement of Paragraph 2 of Article
35 of the Constitution that no one, i.e. neither natural person
nor formation of natural persons, may be forced to belong to
any society, political party, or association. Thus, in cases
when part of the owners of the premises contained in an
apartment house decide to establish the association, the other
owners may not be regarded as members of this association only
because of the fact of such a decision. Such forced membership
in the association is impermissible.
3.4. While exercising their rights and freedoms, persons
must observe the Constitution and the laws, and must not impair
the rights and freedoms of other people (Article 28 of the
Constitution). The unwillingness or refusal of individual
owners to be members of the established association of
apartment house owners may not hinder the other owners to
establish such associations and implement the possession and
use of the common shared property through these associations.
Alongside, it needs to be noted that the principle of
voluntariness of membership in the association means that the
owner has the right not to joint the association, i.e. not to
relate himself with the membership relationship in the
association, however, in this case such an owner of residential
and non-residential premises contained in the apartment house
remains a subject of the other legal relations linked with the
implementation of the rights of common shared ownership.
As ownership obligates, owners of residential and
non-residential premises contained in an apartment house
(natural and legal persons alike) must fulfil the obligations
arising from the implementation of the common shared ownership
(to pay the expenses connected with exploitation, repair,
improvement etc.) of the objects of communal use of the house
irrespective of the fact whether they are or are not members of
the association. The disputes between the association and its
members arising in connection with this may be decided by court
procedure (Paragraph 1 of Article 30 of the Constitution).
4. As mentioned, the bases of membership of the
association of apartment house owners are established in the
following provisions of Paragraph 1 of Article 16 of the Law
(wording of 21 February 1995): "Members of the association are
owners of the premises contained in the houses", "The owners of
the premises of a house shall acquire the rights and duties of
the members of association as of the date of the registration
of the regulations of the association or as of the date of the
occurrence of the ownership rights to the premises in the house
belonging to the association".
While construing the content of the disputed provision
"Members of the association are owners of the premises
contained in the houses", one must, first of all, note that in
this provision, as well as in a number of other provisions
(Articles 2, 3, 4, 5 and 6) it is established that members of
the association may be owners of residential and
non-residential premises but not any other persons (e.g.,
members of the owners' families, tenants of the premises).
In the course of the investigation of the compliance of
the said provision of the Law with Article 35 of the
Constitution, it is necessary to link this provision with
another provision of Paragraph 1 of Article 16 whereby the
owners of the premises of a house shall acquire the rights and
duties of the members of association as of the date of the
registration of the regulations of the association or as of the
date of the occurrence of the ownership rights to the premises
in the house belonging to the association. This provision
establishes not only the situation when the person becomes a
member of the association. On the grounds of the logical and
systematic construction of both of the disputed provisions of
the Law (wording of 21 February 1995), it is possible to draw a
conclusion that the essential rule of membership in the
association was established therein: owners of premises
contained in apartment houses become members of the association
solely on the grounds that they, at the moment of the
establishment of the association, hold or acquire later
residential or non-residential premises in the apartment house
in which the association has been established.
Paragraphs 1 and 2 of Article 17 of the Law (wording of 21
February 1995) regulated the change in the membership of the
association according to the same principles: "The membership
of a person in the association shall terminate when the member
looses his right of ownership to all residential and
non-residential premises held by him in the association. Upon
selling the premises held by him or upon transferring them in
any other way, as well as upon his death, the person who has
acquired or inherited the said premises shall become a member
of the association."
In these provisions of the Law, the termination and
acquisition of membership in the association was respectively
linked with the legal facts of either loss (including cases of
death) or acquisition of the rights of ownership to residential
and non-residential premises.
Thus the disputed provisions of Paragraph 1 of Article 16
of the Law (wording of 21 February 1995) and Paragraphs 1 and 2
of Article 17 of the same Law enumerate all the bases when the
membership in the association begins and when it terminates.
Among them there is not any basis regarding the right of the
owner to join or leave the association of his own free will. It
needs to be noted that neither aforementioned articles nor any
other articles of the Law (wording of 21 February 1995) employ
such legal notions as "joining the association" and "leaving
the association". The analysis of the disputed provisions of
Articles 16 and 17 of the Law (wording of 21 February 1995)
shows that the owners of residential premises of apartment
houses were held to be ex lege members of the established
association.
5. The disputed provision of Paragraph 1 of Article 16
"The owners of the premises of a house shall acquire the rights
and duties of the members of association as of the date of the
registration of the regulations of the association or as of the
date of the occurrence of the ownership rights to the premises
in the house belonging to the association" of the Law (wording
of 21 February 1995) is repeated in Paragraph 4 of Article 27
of the Law (wording of 20 June 2000), while former Paragraph 1
of Article 17 of the Law (wording of 21 February 1995) was
included into Paragraph 7 of Article 27 of the Law (wording of
20 June 2000).
Paragraphs 4 and 7 of Article 27 of the Law (wording of 20
June 2000) provide:
"4. The owners of the premises of a house shall acquire
the rights and duties of the members of association as of the
date of the registration of the regulations of the association
or as of the date of the occurrence of the ownership rights to
the premises in the house belonging to the association. <...>
7. The membership of a person in the association shall
terminate when the member looses his right of ownership to all
the premises held by him, and in cases of liquidation of the
association."
These disputed provisions, as well as those of Articles 16
and 17 of the Law (wording of 21 February 1995), enumerate all
the bases when the membership in the association begins and
when it terminates, however, they do not provide for an
opportunity for the owner to join or leave the association of
his own free will.
6. Taking account of the arguments pointed out in this
Ruling of the Constitutional Court, one is to draw the
following conclusions:
1) the provisions of Paragraph 1 of Article 16 of the Law
on the Associations of Apartment House Owners (wording of 21
February 1995) whereby members of the association are owners of
the premises contained in the houses and that the owners of the
premises of a house shall acquire the rights and duties of the
members of association as of the date of the registration of
the regulations of the association or as of the date of the
occurrence of the ownership rights to the premises in the house
belonging to the association and Paragraph 2 of Article 17 of
the same Law, as well as Paragraph 4 of Article 27 of this Law
(wording of 20 June 2000) to the extent that the appearance of
the membership in the association of apartment house owners is
not linked with the free will of the owner conflict with
Paragraphs 1 and 2 of Article 35 of the Constitution;
2) Paragraph 1 of Article 17 of the Law on the
Associations of Apartment House Owners (wording of 21 February
1995) and Paragraph 7 of Article 27 of this Law (wording of 20
June 2000) to the extent that they deny the right of the owner
to leave the association of apartment house owners of his own
free will conflict with Paragraphs 1 and 2 of Article 35 of the
Constitution.
III
On the compliance of the provisions of Sections 1 and 3 of
Item 8 and Section 4 of the same item, as well as Section 1 of
Item 10 of the Standard Regulations of Associations of
Apartment House Owners approved by Government Resolution No.
852 "On the Procedure of Enforcement of the Republic of
Lithuania Law on the Associations of Apartment House Owners" of
15 June 1995 with the Constitution.
1. Sections 1, 3 and 4 of Item 8 of the Standard
Regulations of Associations of Apartment House Owners provide:
"Members of the association are owners of apartments and
non-residential premises contained in the house (houses)
(hereinafter referred to as owners of the premises of the
house). Each owner shall be entitled to one vote in the
association. The joint proprietors who hold premises by the
right of common shared ownership must decide among themselves
who will represent them in the association. The representative
of joint proprietors shall be entitled to one vote in the
association. <...>
The owners of the premises of the house shall acquire the
rights and duties of the members of association as of the date
of the registration of the regulations of the association or as
of the date of the occurrence of the ownership rights to the
premises in the house. A natural person who is a member of the
association may, in the prescribed manner, authorise another
person to participate in the activities of the association on
his behalf.
An application of the owners of the premises of the house
for membership in the association or their consent is not
necessary."
Section 1 of Item 10 of the Regulations provides: "The
membership of a person in the association shall terminate when
the member looses his right of ownership to all residential and
non-residential premises held by him in the association. Upon
selling the premises held by him or upon transferring them in
any other way, as well as upon his death, the person who has
acquired or inherited the said premises shall become a member
of the association."
2. Under the disputed provisions of Sections 1 and 3 of
Item 8 of the Regulations as well as under the disputed
provisions of the Law (wordings of 21 February 1995 and 20 June
2000), owners of the premises contained in apartment houses are
regarded as members of the association solely on the grounds
that they are co-owners of the common shared property in a
house in which the association has been established. Section 4
of Item 8 of the Regulations points out that an application of
the owners of the premises of the house for membership in the
association or their consent is not necessary. It means that
the right of the owner to join the association of his own free
will is denied.
In Section 1 of Item 10 of the Regulations, as well as in
the disputed provision of Paragraph 1 of Article 16 of the Law
(wording of 21 February 1995), the right of the owner to leave
the association of his own free will is denied.
3. Taking account of the arguments set forth in this
Ruling concerning the conflict of the disputed provisions of
the Law (wordings of 21 February 1995 and 20 June 2000) with
Paragraphs 1 and 2 of Article 35 of the Constitution, due to
the same arguments one can draw the following conclusions:
1) the provisions of Sections 1 and 3 of Item 8 of the
Standard Regulations of Associations of Apartment House Owners
whereby members of the association are owners of apartments and
non-residential premises contained in the house (houses) and
that the owners of the premises of the house shall acquire the
rights and duties of the members of association as of the date
of the registration of the regulations of the association or as
of the date of the occurrence of the ownership rights to the
premises in the house to the extent that the appearance of the
membership in the association of apartment house owners is not
linked with the free will of the owner, as well as Section 4 of
Item 8 of the Regulations, conflict with Paragraphs 1 and 2 of
Article 35 of the Constitution;
2) Section 1 of Item 10 of the Standard Regulations of
Associations of Apartment House Owners to the extent that it
denies the right of the owner to leave the association of
apartment house owners of his own free will conflicts with
Paragraphs 1 and 2 of Article 35 of the Constitution.
IV
On the compliance of Article 19 of the Law on the
Associations of Apartment House Owners (wording of 21 February
1995) with Article 23 of the Constitution.
1. It was provided in Article 19 of the Law (wording of 21
February 1995): "The property of the association shall consist
of the residential and non-residential premises and other
material assets, purchased or acquired in any other lawful
manner."
The doubts of the petitioner concerning the compliance of
the said article of this Law (wording of 21 February 1995) with
Article 23 of the Constitution are based on the fact that the
aforesaid norm does not provide as to what particular premises
and material assets constitute the property of the association,
and by whose money such premises and material assets are
acquired. According to the petitioner, this permits to
recognise the residential and non-residential premises and
other material assets held by the owners of the apartment house
as property of the association irrespective of the will of the
owners.
2. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
The provisions of Article 23 of the Constitution mean that
the owner as a possessor of subjective rights to property is
guaranteed the right to demand that other persons should not
infringe his rights. In the context of the case at issue, it
needs to be noted that, under Paragraph 3 of Article 23 of the
Constitution, no one is permitted to seize property in an
arbitrary manner: property may only be seized according to the
law and only for the needs of society and must be adequately
compensated for.
3. The content of the disputed norm of Article 19 of the
Law must be construed, while taking account of the legal
regulation established in the other articles of the Law. In
these articles the property of the association (Article 19) is
separated from the property belonging to the owners (Paragraph
1 of Article 20). Besides, under Paragraph 2 of Article 20 of
the Law (wording of 21 February 1995), the association shall
have the right to possess and utilise communal use premises,
house structures and engineering facilities belonging to all
the owners by the right of common shared ownership but not the
property belonging to individual owners, however, it does not
have the right to dispose of this property. On the basis of the
said articles, it is impossible to draw a conclusion that on
the grounds of Article 19 of the Law (wording of 21 February
1995) the residential and non-residential premises belonging to
individual owners might be transferred to the association for
possession, use and disposal against the will of the owner.
4. It needs to be noted that the Constitutional Court,
while construing Article 20 of the Law (wording of 21 February
1995), held that the residential and non-residential premises
contained in the apartment house (i.e. premises of not communal
use) which belong to the owners by the right of ownership are
not handed over to the association, and that the establishment
of the association does not mean that the subjects of private
and public property lose their right to the property belonging
to them, therefore the establishment of the association in
itself does not give reason to restrict or otherwise limit the
rights and legitimate interests of the owners.
Taking account of the arguments set forth, one is to
conclude that Article 19 of the Law (wording of 21 February
1995) is in compliance with Article 23 of the Constitution.
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 of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that the provisions of Paragraph 1 of
Article 16 of the Republic of Lithuania Law on the Associations
of Apartment House Owners (wording of 21 February 1995) whereby
members of the association are owners of the premises contained
in the houses and that the owners of the premises of a house
shall acquire the rights and duties of the members of
association as of the date of the registration of the
regulations of the association or as of the date of the
occurrence of the ownership rights to the premises in the house
belonging to the association and Paragraph 2 of Article 17 of
the same law, as well as Paragraph 4 of Article 27 of this law
(wording of 20 June 2000) to the extent that the appearance of
the membership in the association of apartment house owners is
not linked with the free will of the owner, conflict with
Paragraphs 1 and 2 of Article 35 of the Constitution of the
Republic of Lithuania.
2. To recognise that Paragraph 1 of Article 17 of the
Republic of Lithuania Law on the Associations of Apartment
House Owners (wording of 21 February 1995) and Paragraph 7 of
Article 27 of this law (wording of 20 June 2000) to the extent
that they deny the right of the owner to leave the association
of apartment house owners of his own free will conflict with
Paragraphs 1 and 2 of Article 35 of the Constitution of the
Republic of Lithuania.
3. To recognise that the provisions of Sections 1 and 3 of
Item 8 of the Standard Regulations of Associations of Apartment
House Owners approved by Government of the Republic of
Lithuania Resolution No. 852 "On the Procedure of Enforcement
of the Republic of Lithuania Law on the Associations of
Apartment House Owners" of 15 June 1995 whereby members of the
association are owners of apartments and non-residential
premises contained in the house (houses) and that the owners of
the premises of the house shall acquire the rights and duties
of the members of association as of the date of the
registration of the regulations of the association or as of the
date of the occurrence of the ownership rights to the premises
in the house to the extent that the appearance of the
membership in the association of apartment house owners is not
linked with the free will of the owner, as well as Section 4 of
Item 8 of these regulations, conflict with Paragraphs 1 and 2
of Article 35 of the Constitution of the Republic of Lithuania.
4. To recognise that Section 1 of Item 10 of the Standard
Regulations of Associations of Apartment House Owners approved
by Government of the Republic of Lithuania Resolution No. 852
"On the Procedure of Enforcement of the Republic of Lithuania
Law on the Associations of Apartment House Owners" of 15 June
1995 to the extent that it denies the right of the owner to
leave the association of apartment house owners of his own free
will conflicts with Paragraphs 1 and 2 of Article 35 of the
Constitution of the Republic of Lithuania.
5. To recognise that Article 19 of the Republic of
Lithuania Law on the Associations of Apartment House Owners
(wording of 21 February 1995) is in compliance with Article 23
of the Constitution.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.