Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 3.2 of Appendix 1
"Standard Agreement of Residential Premises Rent
in Available State and Public Houses" of the
Standard Rules of Utilisation of a Residential
House (Apartment) in Available State, Public and
Privatised Apartments and Upkeep of its
Surroundings approved by Government of the
Republic of Lithuania Resolution No. 309 "On the
Procedure of Privatisation, Sale and Utilisation
of Apartments" of 31 July 1991 and Item 2 of the
Rules of Exchanging of Residential Premises
approved by Government of the Republic of
Lithuania Resolution No. 496 "On the Procedure of
Exchanging of Residential Premises" of 29 November
1991 with the Constitution of the Republic of
Lithuania and Paragraph 1 of Article 348 of the
Civil Code of the Republic of Lithuania
Vilnius, 15 May 2001
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-Natalija
Lesiukova, the chief specialist of the Legal Division of 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 9
May 2001 in its public hearing conducted the investigation of
Case No. 4/2000 subsequent to the petition submitted to the
Court by the petitioner-the Klaipėda Regional Administrative
Court-requesting investigation into the compliance of Item 3.2
of Appendix 1 "Standard Agreement of Residential Premises Rent
in Available State and Public Houses" of the Standard Rules of
Utilisation of a Residential House (Apartment) in Available
State, Public and Privatised Apartments and Upkeep of its
Surroundings approved by Government of the Republic of
Lithuania Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 and Item 2 of the Rules of Exchanging of Residential
Premises approved by Government of the Republic of Lithuania
Resolution No. 496 "On the Procedure of Exchanging of
Residential Premises" of 29 November 1991 with the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 348 of
the Civil Code of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-the Klaipėda Regional Administrative
Court-was investigating a case regarding a request to repeal
the decision of 13 May 1999 made by the Klaipėda City Board to
permit to exchange residential premises. The said court
suspended the investigation of the case and appealed to the
Constitutional Court requesting investigation into the
compliance of Item 3.2 of Appendix 1 "Standard Agreement of
Residential Premises Rent in Available State and Public Houses"
(hereinafter also referred to as the Standard Agreement) of the
Standard Rules of Utilisation of a Residential House
(Apartment) in Available State, Public and Privatised
Apartments and Upkeep of its Surroundings approved by
Government Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 (Official Gazette Valstybės žinios, 1991, No. 28-765) and
Item 2 of the Rules of Exchanging of Residential Premises
approved by Government Resolution No. 496 "On the Procedure of
Exchanging of Residential Premises" of 29 November 1991
(Official Gazette Valstybės žinios, 1992, No. 5-93) with the
Constitution and Paragraph 1 of Article 348 of the Civil Code
(hereinafter also referred to as the CC).
II
The arguments of the petitioner are based on the following
arguments.
Paragraph 1 of Article 348 of the CC (wording of 17 May
1994) provides that a tenant may exchange the residential
premises belonging to the local government which are rented by
him with another tenant who rents residential premises from the
local government. This norm of the CC does not point out that
the tenant of such premises may exchange them with the owner of
other premises or another subject of the premises. Meanwhile,
Item 2 of the Rules of Exchanging of Residential Premises
provides that the tenant or owner of residential premises shall
have the right to exchange the residential premises with
another tenant or owner from the same or another residential
area, while Item 3.2 of the Standard Agreement provides that
the tenant shall have the right to exchange his residential
premises with another tenant, or a member of a residential
house cooperative or the owner of a residential house or of an
apartment.
The petitioner maintains that the aforementioned
governmental legal acts do not contain any restrictions for
tenants of residential premises belonging to local governments
or other entities to exchange the residential premises with the
owner of other residential premises.
The petitioner doubts whether Item 2 of the Rules of
Exchanging of Residential Premises and Item 3.2 of the Standard
Agreement are in compliance with Paragraph 1 of Article 348 of
the CC and the Constitution. The petitioner points out that, as
a rule, a substatutory legal act is a governance act as well as
one enforcing the law, and that the procedure of law
enforcement may not amend the law itself.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from N. Lesiukova, the representative of the party
concerned-the Government.
1. According to the representative of the party concerned,
Paragraph 1 of Article 348 of the CC regulates exchanging of
residential premises when the subjects of exchanging are only
the tenants of these premises. Item 2 of the Rules of
Exchanging of Residential Premises points out subjects of
exchanging of residential premises who are not only the tenants
of such premises but also the owners of residential premises.
2. In the opinion of the representative of the party
concerned, when one attempts to determine if the disputed items
of Government resolutions are in compliance with the provisions
of the CC and the Constitution, one must take account of the
development of the legal treatment of exchanging of residential
premises. For example, until 19 October 1992, the Chapter "Rent
of Residential Premises" was composed of Article 318 "Agreement
of Rent of Residential Premises" only. At that time the CC
provided for neither any procedure nor rules of exchanging of
residential premises which were to be applied to certain
relations linked with the procedure of exchanging of
residential premises.
The Government, implementing the Republic of Lithuania Law
on Privatisation of Apartments and the Resolution of the
Supreme Council of the Republic of Lithuania "On the Entry into
Force of the Republic of Lithuania Law on Privatisation of
Apartments" of 30 May 1991, adopted the Resolution "On the
Procedure of Privatisation, Sale and Utilisation of Apartments"
on 31 July 1991. On 29 November 1991, the Government adopted
the Resolution "On the Procedure of Exchanging of Residential
Premises". In the aforementioned governmental resolutions the
procedure of exchanging of residential premises was
established.
On 20 October 1992, the Republic of Lithuania Law "On
Amending Chapter 30 of the Civil Code of the Republic of
Lithuania" went into effect. By this law, in Paragraph 1 of
Article 348 of the CC the main requirements were established to
the situations when the parties to exchanging of residential
premises are the tenants of the residential premises, by
indicating the propriety of the residential premises in respect
to their possessors and owners.
3. The representative of the party concerned pointed out
that the CC presents definitions of the notions of the tenant
and the owner of residential premises and also enumerates their
rights and duties in the utilisation of residential premises
according to their purpose. The owner of residential premises,
as well as the tenant of residential premises, dwells in
certain premises and utilises these premises according to their
purpose (Article 319 of the CC). The rights and the owner of
residential premises, as a user of these premises, include the
rights and duties of the tenant of residential premises except
the rent fee. According to the representative of the party
concerned, the rights of the owner and the tenant of
residential premises coincide in their utilisation according to
their purpose.
In the opinion of the representative of the party
concerned, the rent of residential premises is a from of
realisation of the content of ownership rights (possession, use
and disposal of residential premises) (Article 96 of the CC).
Under the respective procedure, the tenant of residential
premises acquires the right to use the rented premises; the
owner of residential premises has the right to possess, use and
dispose of them according to the laws without violating the
rights and interests of other persons. In other words, the rent
and the legal relations which occur on its basis are, in a
sense, only a constituent part of the rights of ownership.
Exchanging of residential premises between tenants or
between tenants and owners take place according to the
procedure established in resolutions of the Government.
4. The subjects of the relations of exchanging of
residential premises are tenants or, if exchanging occurs
between a tenant and an owner, the subjects are the tenant and
the owner. Due to such a transaction the owners of residential
premises do not change: it is only their users that change.
According to the representative of the party concerned, in such
a case the rights and interests of the tenant of residential
premises are not violated, and the exchanging of residential
premises takes place under the regular procedure, i.e. on the
basis of the provisions of Article 348 of the CC and those of
the aforesaid governmental resolutions.
According to the representative of the party concerned,
the provisions of valid legal acts do not prohibit the owner of
residential premises to be a subject of exchanging of
residential premises. Paragraph 1 of Article 348 of the CC
regulates only one situation and does not regulate other
possible relations. The CC provides that the civil rights and
duties shall also occur on the basis of transactions which,
though not provided for in laws, do not conflict with them
(Item 1 of Paragraph 2 of Article 4).
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the specialist Assoc. Prof. V. Staskonis, Faculty
of Law, Vilnius University.
V
At the Constitutional Court hearing, the representative of
the party concerned N. Lesiukova virtually reiterated the
arguments set forth in her written explanations.
The Constitutional Court
holds that:
I
On the compliance of the provision of Item 3.2 of Appendix
1 "Standard Agreement of Residential Premises Rent in Available
State and Public Houses" of the Standard Rules of Utilisation
of a Residential House (Apartment) in Available State, Public
and Privatised Apartments and Upkeep of its Surroundings
approved by Government Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 with Paragraph 1 of Article 348 of the Civil Code.
1. Item 3.2 of Appendix 1 "Standard Agreement of
Residential Premises Rent in Available State and Public Houses"
of the Standard Rules of Utilisation of a Residential House
(Apartment) in Available State, Public and Privatised
Apartments and Upkeep of its Surroundings approved by
Government Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 provides that the tenant of residential premises has the
right "with the consent of all the members of the family
dwelling in the said premises who are of age, including those
who are temporarily absent, to exchange, under the established
procedure, the premises held by him with either another tenant,
or a member of a cooperative of residential houses or the owner
of a residential house or of an apartment".
The petitioner requests investigation into the compliance
of Item 3.2 of the Standard Agreement with Paragraph 1 of
Article 348 of the CC. Even though the petitioner points out
whole Item 3.2 of the Standard Agreement, it is clear from the
arguments set forth in the petition, however, that it doubts
whether not whole Item 3.2 of the Standard Agreement is in
compliance with Paragraph 1 of Article 348 of the CC but only
the provision of this item that the tenant of residential
premises of available state and public apartments has the right
to exchange the residential premises held by him with the owner
of a residential house or of an apartment.
Taking account of the arguments set forth in the petition,
the Constitutional Court will investigate whether the provision
of Item 3.2 of the Standard Agreement that the tenant of
residential premises of available state and public apartments
has the right to exchange the residential premises held by him
with the owner of a residential house or of an apartment is in
compliance with Paragraph 1 of Article 348 of the CC.
2. Paragraph 1 of Article 348 of the CC provides: "The
tenant of residential premises of either a local government, an
enterprise, an organisation or a natural person, shall have the
right to exchange the rented residential premises, with the
written consent of all the members of the family dwelling in
the said premises who are of age, including those who are
temporarily absent, and with the consent of the tenant, with
another tenant of residential premises of either a local
government, an enterprise, an organisation or a natural
person".
It is clear form the content of the aforesaid norm that
only the natural persons who transfer each other the rented
residential premises may be parties to the agreement of
exchanging of residential premises. The matter of this
agreement is the residential premises which are used by both
parties to the agreement on the grounds of the agreements of
rent of the residential premises. Under Paragraph 1 of Article
348 of the CC, the matter of the agreement of exchanging of
residential premises may not be residential premises belonging
to one person by the right of ownership and residential
premises used by another person on the grounds of the rent
agreement.
3. A Government resolution is a substatutory legal act, it
may not conflict with the law, nor change the content of norms
of the law, it may not contain any legal norms which would
compete with norms of the law. The Standard Agreement approved
by the Government resolution is a constituent part of the
Government resolution.
Item 3.2. of the Standard Agreement provides that that the
tenant of residential premises of available state and public
apartments has the right to exchange the said residential
premises not only with another tenant but also with a member of
a cooperative of residential houses or the owner of a
residential house or of an apartment. Thus, if compared with
the circle of subjects established in Paragraph 1 of Article
348 of the CC, the Standard Agreement provides for a wider
circle of subjects with whom the tenant of residential premises
of available state and public apartments may exchange the
residential premises. Alongside, a different matter of the
agreement of exchanging of residential premises is provided
for.
4. On the grounds of the arguments set forth, one is to
conclude that the provision of Item 3.2 of Appendix 1 "Standard
Agreement of Residential Premises Rent in Available State and
Public Houses" of the Standard Rules of Utilisation of a
Residential House (Apartment) in Available State, Public and
Privatised Apartments and Upkeep of its Surroundings approved
by Government Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 that the tenant of residential premises of available state
and public apartments has the right to exchange the residential
premises held by him with the owner of a residential house or
of an apartment conflicts with Paragraph 1 of Article 348 of
the Civil Code.
II
On the compliance of the provision of Item 2 of the Rules
of Exchanging of Residential Premises approved by Government
Resolution No. 496 "On the Procedure of Exchanging of
Residential Premises" of 29 November 1991 with Paragraph 1 of
Article 348 of the Civil Code.
1. By the Law "On Amending Certain Articles of the Code of
Apartments of the Republic of Lithuania" of 6 December 1990,
the articles of the Code of Apartments regulating exchanging of
residential premises were amended. The law commissioned the
Government to take account of the amendments and supplements
made by the said law and establish the procedure of exchanging
of residential premises.
By Resolution No. 496 "On the Procedure of Exchanging of
Residential Premises" of 29 November 1991, the Government
approved the Rules of Exchanging of Residential Premises
whereby the procedure of exchanging of residential premises
which are in available state or public residential houses or
available apartments of cooperatives of residential houses, as
well as is in a house or apartment which is held by private
ownership by one of the party to the exchanging, was
established.
Item 2 of the Rules of Exchanging of Residential Premises
provides: "The tenant or the owner of residential premises
shall have the right to exchange, with the consent of all the
members of the family dwelling in the said premises who are of
age, including those who are temporarily absent, the premises
held by him with either another tenant or an owner."
The petitioner requests investigation into the compliance
of Item 2 of the Rules of Exchanging of Residential Premises
with Paragraph 1 of Article 348 of the CC. Even though the
petitioner points out whole Item 2 of the Rules of Exchanging
of Residential Premises, however, it is clear from the
arguments set down in the petition that it doubts whether not
whole Item 2 of the aforementioned rules is in compliance with
Paragraph 1 of Article 348 of the CC but only the provision
that the tenant of residential premises has the right to
exchange the residential premises with the owner of residential
premises.
Taking account of the arguments set forth in the petition,
the Constitutional Court will consider whether the provision of
Item 2 of the Rules of Exchanging of Residential Premises that
the tenant of residential premises has the right to exchange
the residential premises with the owner of residential premises
is in compliance with Paragraph 1 of Article 348 of the CC.
2. The Rules of Exchanging of Residential Premises
approved by the Government resolution is a constituent part of
the Government resolution. It has been mentioned that a
Government resolution is a substatutory legal act, it may not
conflict with the law, nor change the content of norms of the
law, it may not contain any legal norms which would compete
with norms of the law.
Under Item 2 of the Rules of Exchanging of Residential
Premises, the tenant of any available residential premises has
the right to exchange the residential premises with either
another tenant of residential premises or the owner of
residential premises. Thus, if compared with the circle of
subjects established in Paragraph 1 of Article 348 of the CC,
the Rules of Exchanging of Residential Premises provide for a
wider circle of subjects with whom the tenant of residential
premises of available state and public apartments may exchange
the residential premises. Alongside, a different matter of the
agreement of exchanging of residential premises is provided
for.
3. On the grounds of the arguments set forth, one is to
conclude that the provision of Item 2 of the Rules of
Exchanging of Residential Premises approved by Government
Resolution No. 496 "On the Procedure of Exchanging of
Residential Premises" of 29 November 1991 that the tenant of
residential premises has the right to exchange the residential
premises with the owner of residential premises conflicts with
Paragraph 1 of Article 348 of the Civil Code.
III
On the compliance of Item 3.2 of Appendix 1 "Standard
Agreement of Residential Premises Rent in Available State and
Public Houses" of the Standard Rules of Utilisation of a
Residential House (Apartment) in Available State, Public and
Privatised Apartments and Upkeep of its Surroundings approved
by Government Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 and Item 2 of the Rules of Exchanging of Residential
Premises approved by Government of Resolution No. 496 "On the
Procedure of Exchanging of Residential Premises" of 29 November
1991 with Items 2 and 7 of Article 94 of the Constitution.
1. The petitioner requests investigation into the
compliance of Item 3.2 of the Standard Agreement and Item 2 of
the Rules of Exchanging of Residential Premises with the
Constitution. Although the petitioner points out whole Item 3.2
of the Standard Agreement, however, from the arguments set down
in the petition it is clear that the petitioner doubts as for
the compliance of not whole Item 3.2 of the Standard Agreement
with the Constitution but only the provision of this item that
the tenant of residential premises of available state and
public apartments has the right to exchange the residential
premises held by him with the owner of a residential house or
of an apartment. Also, the petitioner points out whole Item 2
of the Rules of Exchanging of Residential Premises, however,
from the arguments set down in the petition it is clear that
the petitioner doubts as for the compliance of not whole Item 2
of the Rules of Exchanging of Residential Premises with the
Constitution but only the provision of this item that the
tenant of residential premises has the right to exchange the
residential premises with the owner of residential premises.
The petitioner does not indicate concrete articles of the
Constitution which, in its opinion, the disputed provisions of
substatutory acts conflict with. It is clear form the arguments
set forth in the petition that the petitioner doubts as for the
compliance of the disputed substatutory legal acts with Items 2
and 7 of Article 94 of the Constitution.
Taking account of the arguments set down in the petition,
the Constitutional Court will consider whether the provision of
Item 3.2 of the Standard Agreement that the tenant of
residential premises of available state and public apartments
has the right to exchange the residential premises held by him
with the owner of a residential house or of an apartment and
the provision of Item 2 of the Rules of Exchanging of
Residential Premises that the tenant of residential premises
has the right to exchange the residential premises with the
owner of residential premises with Items 2 and 7 of Article 94
of the Constitution.
2. Items 2 and 7 of Article 94 of the Constitution
provides that the Government of the Republic of Lithuania
shall:
"2) implement laws and resolutions of the Seimas
concerning the implementation of laws, as well as the decrees
of the President of the Republic; <...>
7) discharge other duties prescribed to the Government by
the Constitution and other laws."
3. It needs to be noted that at the time when the
Government approved the Standard Agreement by the resolution of
31 July 1991 and the Rules of Exchanging of Residential
Premises by the resolution of 29 November 1991 the relations of
exchanging of residential premises were regulated by the Code
of Apartments. On 15 July 1992 the Law "On Amending Chapter 30
of the Civil Code of the Republic of Lithuania" was passed.
Under this law, the relations of exchanging of residential
premises fell under the regulation of Article 348 of the CC as
well. The Code of Apartments ceased to be valid on 1 July 1998.
4. Considering whether the norms of the disputed legal
acts are in conformity with the Constitution, one needs to note
that the norms of Items 2 and 7 of Article 94 of the
Constitution establishing that the Government shall implement
laws and that it shall discharge other duties prescribed to it
by the Constitution and other laws are to be interpreted as
establishing a duty to the Government to supplement its
previously adopted acts so that they might be in conformity
with subsequently adopted laws or to repeal its previously
adopted acts in case the legal norms established therein are in
conflict with those of the law (Constitutional Court ruling of
5 April 2000).
Thus, after the legal treatment of the relations of
exchanging of residential premises had changed, the Government
faced the duty to ensure that its previously adopted acts be in
compliance with Article 348 of the CC.
5. It has been held in this Constitutional Court Ruling
that the provision of Item 3.2 of the Standard Agreement
approved by the Government resolution that the tenant of
residential premises of available state and public apartments
has the right to exchange the residential premises held by him
with the owner of a residential house or of an apartment and
the provision of Item 2 of the Rules of Exchanging of
Residential Premises approved by the Government resolution that
the tenant of residential premises has the right to exchange
the residential premises with the owner of residential premises
conflict with Paragraph 1 of Article 348 of the Civil Code.
After one has held that the provisions of the disputed legal
acts approved by the Government resolutions conflict with the
subsequently adopted law, alongside it needs to be held that
the requirements established in Items 2 and 7 of Article 94 of
the Constitution have not been conformed with.
6. On the grounds of the arguments set forth one is to
draw a conclusion that the provision of Item 3.2 of Appendix 1
"Standard Agreement of Residential Premises Rent in Available
State and Public Houses" of the Standard Rules of Utilisation
of a Residential House (Apartment) in Available State, Public
and Privatised Apartments and Upkeep of its Surroundings
approved by Government Resolution No. 309 "On the Procedure of
Privatisation, Sale and Utilisation of Apartments" of 31 July
1991 that the tenant of residential premises of available state
and public apartments has the right to exchange the residential
premises held by him with the owner of a residential house or
of an apartment and the provision of Item 2 of the Rules of
Exchanging of Residential Premises approved by Government
Resolution No. 496 "On the Procedure of Exchanging of
Residential Premises" of 29 November 1991 that the tenant of
residential premises has the right to exchange the residential
premises with the owner of residential premises conflict with
Items 2 and 7 of Article 94 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 provision of Item 3.2 of Appendix
1 "Standard Agreement of Residential Premises Rent in Available
State and Public Houses" of the Standard Rules of Utilisation
of a Residential House (Apartment) in Available State, Public
and Privatised Apartments and Upkeep of its Surroundings
approved by Government of the Republic of Lithuania Resolution
No. 309 "On the Procedure of Privatisation, Sale and
Utilisation of Apartments" of 31 July 1991 that the tenant of
residential premises of available state and public apartments
has the right to exchange the residential premises held by him
with the owner of a residential house or of an apartment
conflicts with Paragraph 1 of Article 348 of the Civil Code of
the Republic of Lithuania and Items 2 and 7 of Article 94 of
the Constitution of the Republic of Lithuania.
2. To recognise that the provision of Item 2 of the Rules
of Exchanging of Residential Premises approved by Government of
the Republic of Lithuania Resolution No. 496 "On the Procedure
of Exchanging of Residential Premises" of 29 November 1991 that
the tenant of residential premises has the right to exchange
the residential premises with the owner of residential premises
conflicts with Paragraph 1 of Article 348 of the Civil Code of
the Republic of Lithuania and Items 2 and 7 of Article 94 of
the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.