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On membership in the associations of apartment house owners

Case No. 8/99

 

 

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’s 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 the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s 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 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

Darius Karvelis, a consultant to the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

Vytautas Jonaitis, Deputy Director of the Department for Dwelling and Output Rates Setting at the Ministry of Environment of the Republic of Lithuania, 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 12 December 2000, in its public hearing, considered case No. 8/99 subsequent to the petition submitted to the Constitutional Court by the First Vilnius City Local Court requesting an investigation into whether Paragraph 1 of Article 16, Paragraphs 1 and 2 of Article 17 of the Republic of Lithuania’s 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 the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s 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 First Vilnius City Local Court—was considering a civil case on the court award of entrance fees and payments for public utilities to an association of apartment house owners. By means of its ruling of 18 March 1999, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 1 of Article 16, Paragraphs 1 and 2 of Article 17 of the Republic of Lithuania’s 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 the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s 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 petition 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 loses 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 ½ of the owners. The resolutions in the constituent meeting are adopted by 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. the 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: the observance of the regulations of the association, the fulfilment of the obligations of the association and the resolutions of the association board and of the bodies of control, the participation in the activities of the association, the 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 the Government Resolution (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s 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 impugned norms of the Law (wording of 21 February 1995) and those of the Regulations permits assuming 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 one to deem the residential or non-residential premises or other material assets held by the owners of the premises of the dwelling-house to be 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 the Implementation of the Republic of Lithuania’s 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 First Vilnius City Local Court—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 an investigation into 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 reasoning 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 impugned 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 impugned provision of Paragraph 1 of Article 16 of the Law (wording of 21 February 1995) by which 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 applicable in the civil case considered by the petitioner, are in conformity with the Constitution, the Constitutional Court will investigate the impugned 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 an investigation into 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 reasoning 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 operative part of the ruling of the said court Section 4 of Item 8 is not indicated.

Taking account of the reasoning pointed out by the petitioner, the Constitutional Court will investigate whether the impugned 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) prescribed: “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 (municipalities, 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) prescribed:

The membership of a person in the association shall terminate when the member loses 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 impugned 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 impugned 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 should 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 includes obligations. By means of 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) prescribed: “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 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 join 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 includes obligations, owners of residential and non-residential premises contained in an apartment house (natural and legal persons alike) must fulfil the obligations arising out of 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 impugned 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 by which 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 impugned provisions of the Law (wording of 21 February 1995), it is possible to draw the 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 loses 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 impugned 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 impugned 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 impugned 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 loses his right of ownership to all the premises held by him, and in cases of liquidation of the association.”

These impugned 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, the following conclusions should be drawn:

1) the provisions of Paragraph 1 of Article 16 of the Law on the Associations of Apartment House Owners (wording of 21 February 1995) by which 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 the Government Resolution (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s 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 loses 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 impugned provisions of Sections 1 and 3 of Item 8 of the Regulations as well as under the impugned 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. This 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 impugned 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 impugned 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 by which 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 one to deem the residential and non-residential premises and other material assets held by the owners of the apartment house to be 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 impugned 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 the 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, in its ruling of 23 June 1999, while construing Article 20 of the Law (wording of 21 February 1995), the Constitutional Court 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 provide the grounds for restricting or otherwise limiting the rights and legitimate interests of the owners.

Taking account of the arguments set forth, it should be concluded 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 Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that the provisions of Paragraph 1 of Article 16 of the Republic of Lithuania’s Law on the Associations of Apartment House Owners (wording of 21 February 1995) by which 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’s 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 the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s Law on the Associations of Apartment House Owners” of 15 June 1995 by which 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 the Resolution of the Government of the Republic of Lithuania (No. 852) “On the Procedure of the Implementation of the Republic of Lithuania’s 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’s Law on the Associations of Apartment House Owners (wording of 21 February 1995) is in compliance with Article 23 of the Constitution.

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