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On the transfer of premises to the association of owners of blocks of flats

Case No. 11/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Subitem 2.1.2 and Item 3 of the Procedure for the Transfer of Houses to the Societies which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure for the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 15 June 1995 with Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Societies of Many-flat Houses

 

Vilnius, 23 June 1999

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Jolanta Bernotaitė, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court 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 Law on the Constitutional Court of the Republic of Lithuania, on 3 June 1999, in its public hearing, considered case No. 11/98 subsequent to the petition submitted to the Constitutional Court by the First Vilnius City Local Court, the petitioner, requesting an investigation into whether Subitem 2.1.2 and Item 3 of the Procedure for the Transfer of Houses to the Societies which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure for the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 15 June 1995 were in conformity to Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Societies of Many-flat Houses.

The Constitutional Court

has established:

I

On 21 February 1995, the Seimas adopted the Republic of Lithuania’s Law on Societies of Many-flat Houses (Official Gazette Valstybės žinios, 1995, No. 20-449, No. 106-2353; hereinafter referred to as the Law), Paragraph 3 of Article 20 whereof provides: “After the regulations of the society have been registered officially, the municipality, enterprise, institution or organisation at whose disposal the dwelling-house (houses) is (are) must, within one month and under the established procedure, transfer 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 Resolution “On the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 23 February 1995 (Official Gazette Valstybės žinios, 1995, No. 20-450) that the Government approve the procedure for the transfer of houses to societies until 30 April 1995.

The Government, by means of its Resolution (No. 852) “On the Procedure for the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 15 June 1995, confirmed the Procedure for the Transfer of Houses to the Societies (Official Gazette Valstybės žinios, 1995, No. 51-1269; 1996, No. 10-259; hereinafter referred to as the Procedure).

Subitem 2.1.2 of the Procedure stipulates that, by means of a decision of the mayor (board) of a municipality 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 right of common shared property shall be transferred to the society for no consideration 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 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 on 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 transferred to the societies in cases when:

3.1. the plan documents of the construction of the dwelling-house (the act of the transfer of the house 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 a decision on whether Subitem 2.1.2 and Item 3 of the Procedure for the Transfer of Houses to the Societies which was confirmed by the Government Resolution (No. 852) “On the Procedure for the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 15 June 1995 were in conformity to Paragraph 3 of Article 20 of the Law on Societies of Many-flat Houses of 21 February 1995.

II

The request of the petitioner is grounded on the following arguments.

Paragraph 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 municipality must, within one month and under the established procedure, transfer 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.

Subitem 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 transferred. Thus, the Procedure provides for the exceptions to the Law. This creates the grounds to presume that the provisions of the Procedure by which only certain premises but not all the house are transferred to the society contradict Paragraph 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. Paragraph 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. Paragraph 1 of Article 3 provides that the society shall be a way of management of the property belonging to the owners by right of common property in many-flat houses. Thus, under the Law, the transfer of the house to the society is the transfer 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 categorised as not belonging 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 categorised as not belonging to individual owners and which have a direct functional link with the premises of these owners are not transferred to the society. Item 3 of the Procedure points out which premises of the dwelling-house are categorised as belonging to individual owners. Under Article 1 of the Law, these premises are not premises of common use and they are nor transferred to the society. Subitem 2.1.2 of the Procedure provides which premises are not categorised as belonging to individual owners, thus, under Article 1 of the Law they should be treated as premises of common use and they are transferred to the society.

On the grounds of such arguments, the representative of the party concerned contends that Subitem 2.1.2 and Item 3 of the Procedure are in conformity to Paragraph 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 her 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 Municipalities, 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 Subitem 2.1.2 and Item 3 of the Procedure are in conformity to Paragraph 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 Subitem 2.1.2 and Item 3 of the Procedure the Government, by establishing the conditions for the transfer of houses to the societies, interpreted the norms of the Law in an extended manner.

The Constitutional Court

holds that:

1. Paragraph 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 municipality, enterprise, institution or organisation at whose disposal the dwelling-house (houses) is (are) must, within one month and under the established procedure, transfer 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 Subitem 2.1.2 and Item 3 of the Procedure for the Transfer of Houses to the Societies are in conformity to Paragraph 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 transfer the dwelling-house to the society for the purpose of its management and utilisation” that is formulated in this part should be understood.

2. Impugning the compliance of Subitem 2.1.2 and Item 3 of the Procedure to the Law, the petitioner points out that under Paragraph 3 of Article 20 of the Law, the municipality, 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, transfer the house 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 transferred 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 being disclosed, 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 disclose 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 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.

Paragraph 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 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 right of ownership. Under Paragraph 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 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 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 a society in a many-flat house or whether there has not been founded such a society yet. The founding of a society does not mean that the subjects of private and public property lose their right to the property belonging to them, therefore, the founding of a society as such may not serve as the grounds for restricting or otherwise limiting the rights and legitimate interests of the owners.

The provision by which the dwelling-house is transferred to the society for the purpose of its management and utilisation as consolidated in Paragraph 3 of Article 20 of the Law does not mean the all the premises which are in the house are transferred 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 right of ownership may not be transferred to the society for the purpose of their management and utilisation. Constructing only linguistically the norm of Paragraph 3 of Article 20 of the Law by which the dwelling house (houses) shall be transferred 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 right of ownership must be transferred 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 Paragraph 3 of Article 20 of the Law by which the dwelling-house (houses) must be transferred to the society should be construed by taking account of the norms set forth in Article 4 and Paragraphs 1 and 2 of Article 20 of the Law which establish for what purpose the societies are founded and what property is transferred to them for the purpose of its management and utilisation, as well as by paying heed to the constitutional guarantees of the protection of property.

Taking account of the arguments set forth, the legal norm worded in Paragraph 3 (in the first sentence thereof) of Article 20 of the Law governing the transfer of the dwelling-house to the society for the purpose of its management and utilisation should be interpreted as a norm designed to implement the norms of Paragraphs 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 transfer 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 transferred 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 right of ownership. Therefore, the provision “transfer of the dwelling-house” of Paragraph 3 of Article 20 of the Law should be interpreted as the transfer 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 Paragraph 3 of Article 9 of the Law) but not as the transfer 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 right of ownership are not transferred 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 the Transfer of Houses to the Societies by its Resolution “On the Procedure for the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 15 June 1995.

Subitem 2.1.2 of the Procedure stipulates that, by means of decision of the mayor (board) of a municipality 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 right of common shared property shall be transferred to the society for no consideration 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 using the funds 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 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 on both interested parties. Arising disputes may be decided by judicial procedure.”

Assessing the norms of Subitem 2.1.2 of the Procedure, it should be concluded that they establish which premises of common use are transferred 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 transferred to the societies in cases when:

3.1. the plan documents of the construction of the dwelling-house (the act of the transfer of the house 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 Subitem 3.1 of the Procedure, one should pay heed to the fact that when it is decided on the ground of the said norm whether particular non-dwelling premises should be regarded as those 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 the transfer of the house 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 Subitem 3.1 of the Procedure they are not transferred to the society.

When it is decided on the grounds of Subitem 3.2 of the Procedure whether non-dwelling premises must be transferred 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 the transfer of non-dwelling premises to the society is virtually determined only by means of 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) should 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 transferred 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 right of ownership and that they are of common use as to their purpose.

5. The aim of the impugned Subitem 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 transferred 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 the transfer of non-dwelling premises to the society is decided does not provide a sufficient basis for the possibility of recognising that the said item of the Procedure contradicts Paragraph 3 of Article 20 of the Law, since, under the above construction of the provision “transfer of the house”, it is provided for in the Law that in the course of the transfer 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 right of ownership are not transferred 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 the transfer 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 Civil Code of the Republic of Lithuania). 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, the conclusion should be drawn that Subitem 2.1.2 and Item 3 of the Procedure confirmed by the government resolution are in compliance with Paragraph 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 Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Subitem 2.1.2 and Item 3 of the Procedure for the Transfer of Houses to the Societies which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure for the Implementation of the Republic of Lithuania’s Law on Societies of Many-flat Houses” of 15 June 1995 are in compliance with Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Societies of Many-flat Houses.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Egidijus Jarašiūnas     Egidijus Kūris      Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė