DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of March 2, 2004 No. 4-rp/2004

On case on the constitutional address of Yarovoy Sergey Ivanovich and other citizens on official interpretation of provisions of Item 2 of article 10 of the Law of Ukraine "About privatization of the state housing stock" and on the constitutional idea of 60 People's Deputies of Ukraine of official interpretation of provisions of Articles 1, the 10th this Law (case on the rights of co-owners to auxiliary rooms of apartment houses)

Case No. 1-2/2004

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Selivon Nikolay Fedosovich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Ivashchenko Vladimir Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Mironenko Alexander Nikolaevich,

Nimchenko Vasily Ivanovich,

Wheaten Valery Grigoryevich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Victor Egorovich's buffoons,

Timchenko Ivan Artemyevich - the judge-speaker,

Silent Vladimir Pavlovich,

Tkachuk Pavel Nikolaevich,

Chubar Lyudmila Panteleevna,

Shapoval Vladimir Nikolaevich,

with the assistance of persons of law on the constitutional address Yarovoy Sergey Ivanovich, Plishka Irena Vasilyevna; the representative of other persons of law on the constitutional address - Berezovchuk Mikhail Aleksandrovich; the representative of the person of law on the constitutional provision - Semenyuk Valentina Petrovna, the People's Deputy of Ukraine, the chairman of Special control commission of the Verkhovna Rada of Ukraine concerning privatization; the representatives recruited in consideration of the case: The Verkhovna Rada of Ukraine - Selivanov Anatoly Aleksandrovich, the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine; The President of Ukraine - Nosov Vladislav Vasilyevich, the Permanent representative of the President of Ukraine in the Constitutional Court of Ukraine; The Cabinet of Ministers of Ukraine and the State committee of Ukraine concerning housing and communal services - Alyokhin Vladimir Ilyich, the First Deputy Chairman of this Committee; The state committee of Ukraine on construction and architecture - Avdiyenko Alexander Petrovich, the head of department of architectural and constructive and engineering systems of buildings and constructions of construction engineering appointment; The Kiev city public administration - Dankevich Ivan Petrovich, the vice-chairman of the Kiev city public administration; Fund of state-owned property of Ukraine - Shmulyar Oleg Vasilyevich, the deputy director of Legal department, the head of department of pretentious and claim work and examination of agreements; Associations of investors "Modern architecture and construction" - Balatskaya Olesya Olegovna, the chief executive of Association,

considered at plenary meeting case on the constitutional address of the citizen of Ukraine Yarovoy Sergey Ivanovich and other citizens on official interpretation of provisions of Item 2 of article 10 of the Law of Ukraine "About privatization of the state housing stock" of June 19, 1992 N 2482-XII (Sheets of the Verkhovna Rada of Ukraine, 1992, N 36, Art. 524; 1994, N 24, Art. 182; 1997, N 12, Art. 100; 1998, N 10, the Art. 36) and on the constitutional idea of 60 People's Deputies of Ukraine of official interpretation of provisions of Articles 1, the 10th this Law.

Pretext for consideration of the case according to Articles 42, 39 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional address of citizens of Ukraine and the constitutional provision of 60 People's Deputies of Ukraine.

The basis for consideration of the case according to Articles 93, 94 Laws of Ukraine "About the Constitutional Court of Ukraine" are practical need for explanation, official interpretation of provisions of Article 1 and Item 2 of article 10 of the Law of Ukraine "About privatization of the state housing stock", availability of ambiguous application of these provisions of the Law by public authorities, including courts, and local government bodies.

Having heard the judge-speaker Timchenko I. A., Berezovchuk M. O., Summer S. I., Plishki I. V. explanations., Semenyuk V. P., Selivanova A.O., Nosova V. V., Avdiyenko O. P., Alekhina V. I., Dankevich I. P., Shmulyar O. V., Balatskoy O. O. and having researched case papers, the Constitutional Court of Ukraine established:

1. Persons of law on the constitutional address - Summer S. I. and other citizens, the person of law on the constitutional provision - 60 People's Deputies of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to give official interpretation of provisions of Articles 1, 10 Laws of Ukraine "About privatization of the state housing stock" (further - the Law).

In the constitutional address and the constitutional provision it is, in particular, that provisions of Item 2 of article 10 of the Law are differently applied by public authorities, including courts, and local government bodies.

So, separate executive bodies, local government bodies, their officials, and also some courts adhere to the point of view according to which owners of the privatized apartments at the same time are also co-owners of auxiliary rooms of the apartment house (cellars, attics, ladders, kolyasochny and so forth). Such right at owners of apartments, in their opinion, arises from the moment of privatization of housing and therefore without their consent it is impossible to perform any legal acts of rather auxiliary rooms (to sell, lease, transfer to use, to reconstruct and so forth).

Other executive bodies, local government bodies, their officials, and also separate courts recognize what owners of the privatized apartments for acquisition of right of joint property to auxiliary rooms shall perform for this purpose also additional actions - to create society or consolidation of co-owners of the apartment house and it is obligatory to enter it, to accept the house on the balance, to sign the contract with suppliers of utilities, to pay the fee for use of these services, to register auxiliary placements to bureau of technical inventory count.

Such understanding and respectively application of these provisions of the Law led, according to persons of law on the constitutional address and the constitutional provision, to violation guaranteed by parts one, the fourth article 41 of the Constitution of Ukraine of the rights of citizens to implementation by them of the property right, and also the rights to its protection judicially (Article 55).

2. In the letter in the Constitutional Court of Ukraine the President of Ukraine specified that the property right to the apartment generates also the right of joint property to auxiliary rooms of the apartment house, technical equipment and so forth which are intended for servicing of housing complex and provide its use. In the course of privatization of the state housing stock not only apartments, but also auxiliary rooms are at the same time alienated for benefit of citizens. Therefore the moment of emergence of the property right to the apartment is also the moment of emergence of the right of joint property to auxiliary rooms.

The special control commission of the Verkhovna Rada of Ukraine concerning privatization recognizes that the local government body has no right without the consent of co-owners of the apartment house - the owners privatized to kvartirprodavat, lease or resolve issue of reorganization, superstructure, completion to it of constructions, buildings of staircases and entrance and exit gate, arrangements on facades of houses of special technical equipment of industrial function and so forth, except for carrying out repair work according to the legislation.

The line item of the Ministry of Justice of Ukraine on these questions is that the fact of creation of consolidation of owners of apartments of the apartment house cannot be the basis for increase or reduction of amount of their rights concerning ownership, use and the order of own property. Such associations are created on a voluntary basis for the purpose of assistance to management, content, and also effective use of apartments and other real estate privatized according to the Law.

The state committee of Ukraine on construction and architecture specifies that the procedure for receipt of permission to arrangement of the mansard floor over apartment apartment houses is solved based on the current legislation depending on pattern of ownership on housing or the owner of the house, or is exclusive based on the decision of general meeting of members of consolidation of co-owners of the apartment house on reconstruction and home repair or on construction of economic constructions. In apartment houses where part or all apartments are privatized, arrangement of penthouses can be performed in coordination with owners of the privatized apartments and the owner of the house.

The right of joint property to auxiliary rooms of the apartment house as it is specified in the letter of the State committee of Ukraine concerning housing and communal services, arises from the moment of privatization of the apartment. But until creation of consolidation of co-owners apartment houses are in utility property, in vedaniye of executive bodies (departmental housing stock) or in property of public organizations, their associations (public housing stock). According to article 11 of the Law of Ukraine after acquisition of the status of the legal entity consolidation can resolve issue of acceptance on own balance of all housing complex "Of consolidation of co-owners of the apartment house".

From the point of view of Fund of state-owned property of Ukraine, the right of joint property to auxiliary rooms at owners of apartments arises from the moment of the conclusion persons of law of joint property of the relevant agreement, and privatization of all apartments is not the compulsory provision of emergence of the right of joint property at them.

3. Representatives of persons of law on the constitutional address and the constitutional provision, other participants of the constitutional production at plenary meeting supported the line items on the questions posed stated respectively in the constitutional address and the constitutional provision and in written explanations in the Constitutional Court of Ukraine.

The representative of Association of investors "Modern architecture and construction" Balatskaya O. O. at plenary meeting of the Constitutional Court of Ukraine claimed that the ownership ratio of the certain citizen in common property is not determined by the legislation how also the concept "sovladeniye" is not determined and that the mechanism of transfer or acquisition of property right to the apartment house is not developed. Only the property right of citizens to the apartment is drawn up by the certificate on the property right to it.

4. Resolving issue of official interpretation of provisions of Articles 1, 10 Laws, the Constitutional Court of Ukraine, in aspect of the constitutional address and the constitutional provision, proceeds from it.

4.1. In the constitutional provision People's Deputies of Ukraine, having brought up question of official interpretation of article 10 of the Law, did not give legal reasons for need for official interpretation of provisions of Items 1, for 3, for 4, for 5, for 6, for the 7th this Article. Actually in the constitutional provision, as well as in the constitutional address, approval about need for official interpretation of provisions only of Item 2 of article 10 of the Law is proved. It was confirmed also in the course of the research of case papers on open part of plenary meeting of the Constitutional Court of Ukraine.

4.2. According to part one of article 1 of the Law the essence of privatization of the state housing stock consists in alienation for benefit of citizens of Ukraine and consequently, in their property as apartments (buildings), rooms in apartments and single-family houses where two and more tenants, and the economic constructions and rooms (cellars, sheds and so forth) of the state housing stock belonging to them live. The law settled also the relations connected with origin, registration and acquisition of right of private property to apartments and other subjects to privatization of the state housing stock.

Auxiliary rooms, according to Item 2 of article 10 of the Law, become objects of the right of joint property of co-owners of the apartment house, i.e. their joint property, along with privatization by citizens of apartments that makes sure the single document - the certificate on the property right to the apartment. Confirmation of the right acquired in such a way does not require making of any other additional legal acts. Owners of apartments do not have need to create for this purpose consolidation of co-owners of the apartment house.

The right to apartments of the state housing stock acquired by citizens and auxiliary rooms belonging to them is indestructible (article 41 of the Constitution of Ukraine, is provided with the state and is protected by court (article 55 of the Constitution of Ukraine).

4.3. According to the Constitution of Ukraine all persons of law of property are equal before the law. In apartment houses where not all apartments are privatized or privatized completely, the owner (owners) of not privatized apartments (their legal successors) and owners of the privatized apartments of the apartment house are equal co-owners of auxiliary rooms. They are equal in the right to own, use and dispose of auxiliary rooms. None of owners of apartments have the priority right to use and dispose of these rooms including concerning arrangement of penthouses, superstructure of floors, etc.

Analyzing the questions delivered in the constitutional address and the constitutional provision concerning the right of owners of the privatized and not privatized apartments of apartment houses and local government bodies and local public administrations to dispose of auxiliary rooms, and also structural elements of such houses (the base, bearing walls, inserted floors, ladder marches, etc.), the Constitutional Court of Ukraine proceeds from the legal characteristic of joint property of owners of apartments concretized in the Law of Ukraine "About consolidation of co-owners of the apartment house".

The legal regime of the property which is in joint property of owners of apartments shall be determined, according to the Constitution of Ukraine (Item 7 parts one of Article 92), exclusively the laws of Ukraine.

According to article 19 of the Law of Ukraine "About consolidation of co-owners of the apartment house" the joint property of owners of apartments consists of indivisible and common property. The indivisible property is in their common joint property and the common property - in common partial property is not subject to alienation. In connection therewith the Law co-owners of auxiliary rooms have the right to dispose of them in the limits established by the specified Law and the civil legislation.

Thus, question concerning the consent of owners of kvartirsovladelets of auxiliary rooms of the apartment house - with use at the same time of structural elements of the house, as well as on making of other actions of rather auxiliary rooms (lease and so forth), shall decide on superstructure of floors, arrangement of penthouses, etc. according to the laws on property and other laws of Ukraine, first of all the Civil code of Ukraine.

Based on stated and being guided by Articles 147, 150 Constitutions of Ukraine, Articles 51, of 63, of 65, of 67, of 69, of 93, 94 Laws of Ukraine "About the Constitutional Court of Ukraine", the Constitutional Court of Ukraine solved:

1. In aspect of the constitutional address and the constitutional provision of provision of part one of Article 1, provisions of Item 2 of article 10 of the Law of Ukraine "About privatization of the state housing stock" need to be understood so:

1.1. Auxiliary rooms (cellars, sheds, storerooms, attics, kolyasochny, etc.) are transferred free of charge to common property of citizens along with privatization of apartments by them (rooms in apartments) apartment houses. Confirmation of the property right to auxiliary rooms does not require implementation of additional actions, in particular creation of consolidation of co-owners of the apartment house, the introduction in it.

1.2. The owner (owners) of not privatized apartments of the apartment house is co-owner (co-owners) of auxiliary rooms on an equal basis with owners of the privatized apartments.

1.3. The question concerning the consent of co-owners of auxiliary placements on superstructure of floors, arrangement of penthouses in apartment houses (lease and so forth) is solved on making of other actions of rather auxiliary rooms according to the laws of Ukraine which determine legal regime of property.

2. The solution of the Constitutional Court of Ukraine is obligatory for accomplishment in the territory of Ukraine, final and cannot be appealed.

3. Decision of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine" and in other official publications of Ukraine.

 

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