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On the right to exchange the rented residential premises

Case No. 4/2000

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Item 3.2 of Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Resolution of the Government of the Republic of Lithuania (No. 309) “On the Procedure of the Privatisation, Sale and Utilisation of Apartments” of 31 July 1991 and Item 2 of the Rules of the Exchanging of Residential Premises as approved by the Resolution of the Government of the Republic of Lithuania (No. 496) “On the Procedure of the 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 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

Natalija Lesiukova, the chief specialist of the Legal Division of the Ministry of Environment of the Republic of Lithuania, acting as the representative of 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 9 May 2001, in its public hearing, considered case No. 4/2000 subsequent to the petition submitted to the Constitutional Court by the Klaipėda Regional Administrative Court, the petitioner, requesting an investigation into the compliance of Item 3.2 of Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Resolution of the Government of the Republic of Lithuania (No. 309) “On the Procedure of the Privatisation, Sale and Utilisation of Apartments” of 31 July 1991 and Item 2 of the Rules of the Exchanging of Residential Premises as approved by the Resolution of the Government of the Republic of Lithuania (No. 496) “On the Procedure of the 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 considering a case regarding a request to repeal the decision of 13 May 1999 made by the Klaipėda City Board to permit exchanging residential premises. The said court suspended the consideration of the case and applied to the Constitutional Court requesting an investigation into the compliance of Item 3.2 of Annex 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 the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Government Resolution (No. 309) “On the Procedure of the 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 the Exchanging of Residential Premises as approved by the Government Resolution (No. 496) “On the Procedure of the 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 municipality which are rented by him with another tenant who rents residential premises from the municipality. 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 the 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 limitations for tenants of residential premises belonging to municipalities or other entities on exchanging the residential premises with the owner of other residential premises.

The petitioner doubts whether Item 2 of the Rules of the 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 the exchanging of residential premises when the subjects of exchanging are only the tenants of these premises. Item 2 of the Rules of the Exchanging of Residential Premises points out subjects of the 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 impugned 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 the 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 the exchanging of residential premises which were to be applied to certain relations linked with the procedure of the exchanging of residential premises.

The Government, implementing the Republic of Lithuania’s 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’s Law on Privatisation of Apartments” of 30 May 1991, adopted the Resolution “On the Procedure of the Privatisation, Sale and Utilisation of Apartments” on 31 July 1991. On 29 November 1991, the Government adopted the Resolution “On the Procedure of the Exchanging of Residential Premises”. In the aforementioned government resolutions the procedure of the exchanging of residential premises was established.

On 20 October 1992, the Republic of Lithuania’s 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 the 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 form of the 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.

The exchanging of residential premises between tenants or between tenants and owners take place according to the procedure established in government resolutions.

4. The subjects of the relations of the 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 government resolutions.

According to the representative of the party concerned, the provisions of valid legal acts do not prohibit the owner of residential premises from being a subject of the 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 from the Faculty of Law of 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 Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Government Resolution (No. 309) “On the Procedure of the 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 Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Government Resolution (No. 309) “On the Procedure of the 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 an 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 municipality, 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 municipality, an enterprise, an organisation or a natural person”.

It is clear from 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 the 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 the 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 larger 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 the exchanging of residential premises is provided for.

4. On the grounds of the arguments set forth, it should be concluded that the provision of Item 3.2 of Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Government Resolution (No. 309) “On the Procedure of the 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 the Exchanging of Residential Premises as approved by the Government Resolution (No. 496) “On the Procedure of the Exchanging of Residential Premises” of 29 November 1991 with Paragraph 1 of Article 348 of the Civil Code.

1. By means of 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 the 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 the exchanging of residential premises.

By means of its Resolution (No. 496) “On the Procedure of the Exchanging of Residential Premises” of 29 November 1991, the Government approved the Rules of the Exchanging of Residential Premises by which the procedure of the 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 the 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 an investigation into the compliance of Item 2 of the Rules of the 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 the 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 the 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 the 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 the 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 the Exchanging of Residential Premises provide for a larger 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 the exchanging of residential premises is provided for.

3. On the grounds of the arguments set forth, it should be concluded that the provision of Item 2 of the Rules of the Exchanging of Residential Premises as approved by the Government Resolution (No. 496) “On the Procedure of the 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 Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Government Resolution (No. 309) “On the Procedure of the Privatisation, Sale and Utilisation of Apartments” of 31 July 1991 and Item 2 of the Rules of the Exchanging of Residential Premises as approved by the Government Resolution (No. 496) “On the Procedure of the Exchanging of Residential Premises” of 29 November 1991 with Items 2 and 7 of Article 94 of the Constitution.

1. The petitioner requests an investigation into the compliance of Item 3.2 of the Standard Agreement and Item 2 of the Rules of the 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 the 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 the 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 impugned provisions of substatutory acts conflict with. It is clear from the arguments set forth in the petition that the petitioner doubts as for the compliance of the impugned 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 the 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 the Exchanging of Residential Premises by the resolution of 29 November 1991 the relations of the 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 the 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 impugned 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 should be interpreted as those 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 (the Constitutional Court’s ruling of 5 April 2000).

Thus, after the legal treatment of the relations of the 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 the 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 impugned 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, the conclusion should be drawn that the provision of Item 3.2 of Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Government Resolution (No. 309) “On the Procedure of the 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 the Exchanging of Residential Premises as approved by the Government Resolution (No. 496) “On the Procedure of the 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 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 provision of Item 3.2 of Annex 1 “Standard Agreement of Residential Premises Rent in Available State and Public Houses” of the Standard Rules of the Utilisation of a Residential House (Apartment) in Available State, Public and Privatised Apartments and Upkeep of its Surroundings as approved by the Resolution of the Government of the Republic of Lithuania (No. 309) “On the Procedure of the 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 the Exchanging of Residential Premises as approved by the Resolution of the Government of the Republic of Lithuania (No. 496) “On the Procedure of the 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 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