We have come to understand that apartment owners should not be separated from the issue of use and maintenance of common property

Signs of common property

According to Part 1 of Art. 5 of Law № 417-VIII, the joint property of an apartment building is the joint joint property of the co-owners. This means that the legal regime of this property is established by the provisions of the Central Committee of Ukraine on the implementation of joint joint ownership, taking into account the special provisions of Law № 417-VIII.

Thus, in accordance with Part 1 of Art. 368 of the Civil Code of Ukraine, the joint property of two or more persons without determining the shares of each of them in the right of ownership is a joint joint property. Co-owners of property that is in joint joint ownership, own and use it jointly, unless otherwise agreed between them (Part 1 of Article 369 of the Civil Code of Ukraine).

For joint joint ownership of common property in an apartment building is characterized by the following features:

owners of apartments (non-residential premises) in the house do not have a specific share in the ownership of common property.

If the apartment or non-residential premises belong to more than one co-owner, the exercise of rights and obligations of co-owners of an apartment or non-residential premises, including participation in the management of an apartment building, shall be carried out in accordance with law for joint ownership (Part 3 of Article 4 № 417 -VIII);

this property cannot be divided between the co-owners, and such co-owners do not have the right to allocate in kind a share of the common property of an apartment building.

Thus, in contrast to the general procedure for the implementation of joint joint ownership, when the allocation in kind of shares of one of the co-owners is possible, in the case of an apartment building there is an exception. This provision is very useful, as it is intended to exclude any attempts to appropriate the common property, which a priori should remain in the joint ownership of the residents, by individual stakeholders;

the creditor of the co-owner has no right to demand allocation of a share from the general  property  apartment building in kind for foreclosure on it.

This follows from the very essence of the common property, in particular - its purpose to serve the needs of all co-owners throughout the life of the house. It is logical that to ensure this possibility, the legislator had to enshrine the impossibility of allocating certain elements of common property in kind and further alienation, and hence the withdrawal from the common property.

How to manage?

Ownership of common property may be exercised by co-owners in the manner prescribed by law. We will remind: today co-owners have the right to choose from three mechanisms of management of the house:

1) self-management by making all decisions at the general meeting;

2) creation of condominiums;

3) transfer of all or part of the management functions to the relevant business entity - the manager (more on this - here).

In view of this, the following mechanisms for managing common property are possible:

if condominiums are created in the house, it can determine the order of use of common property in accordance with the charter of the association (Part 1 of Article 16 of the Law № 2866-III);

when managing a building by a manager (business entity - a legal entity or an individual), the procedure for managing common property is determined on the basis of an agreement on the provision of apartment building management services (Article 11 of the Law № 417-VIII);

in the direct management of the house co-owners have the authority to dispose of the common property of an apartment building, establish, change and abolish restrictions on the use of common property have the appropriate meeting of co-owners (Part 2 of Article 10 of Law № 417-VIII).

There are general rights. And responsibilities?

As we have already found out, all owners of apartments (non-residential premises) in an apartment building are co-owners of a common good - common property. But, in addition to rights, all co-owners also have responsibilities related to such rights. Which exactly?

First, regardless of the chosen form of management of common property, all co-owners have the rights and obligations established by law (see Table 1 below).

Second, when creating condominiums, co-owners receive additional rights and responsibilities (see table 2 below)

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Rights and responsibilities of apartment building co-owners  

Right

1) freely use the common property of an apartment building, taking into account the conditions and restrictions established by law or the decision of the co-owners;
2) participate in the management of the apartment building in person or through a representative;
3) receive information on the technical condition of the common property of the apartment building, the conditions of its maintenance and operation, the cost of maintaining the common property of the apartment building and the income received from its use;
4) receive free of charge information on the subjects of ownership of all apartments and non-residential premises in an apartment building and the area of such apartments and premises in the manner and within the limits prescribed by law;
5) to get acquainted with the decisions (minutes) of the meeting of co-owners, questionnaires, make copies of them;
6) for compensation by the guilty person of damages caused to the common property of an apartment building, in the amount corresponding to the share of each co-owner;
7) free access to technical documentation for an apartment building;
8) other rights defined by law

Responsibilities
1) ensure proper maintenance and proper sanitary, fire and technical condition of the common property of an apartment building;
2) provide maintenance and, if necessary, current and major repairs of the common property of an apartment building;
3) use the common property of an apartment building for its intended purpose;
4) comply with the requirements of the rules of maintenance of an apartment building and adjacent territory, fire safety rules, sanitary norms;
5) execute the decisions of the meeting of co-owners;
6) ensure compliance with the requirements of housing and urban planning legislation for the reconstruction, restoration, current and major repairs, technical re-equipment of premises or parts thereof;
7) indemnify for damages caused to the property of other co-owners and the common property of an apartment building;
8) observe cleanliness in public places and silence in accordance with the requirements of the legislation;
9) to provide current inspection and periodic inspection of the apartment house put into operation in the order established by the legislation during all life cycle of the house and to bear responsibility for improper operation according to the law;
10) timely pay for consumed housing and communal services

Note: Law № 417-VIII significantly expanded the list of rights of co-owners of an apartment building. First of all, with the adoption of this Law, the very concept of membership in condominiums as such was abolished, but it was established that in the case of the last management of the house is carried out by all co-owners. The rights of co-owners include the ability to obtain information about the technical condition of the common property of the apartment building, the conditions of its maintenance and operation, the cost of maintaining the common property of the apartment building and the proceeds from its use.

The innovation of the above Law is that the co-owners have the right to receive free information about the subjects of ownership of all apartments and non-residential premises in an apartment building and the area of such apartments and premises in the manner and within the limits prescribed by law. In practice, you can find out about the owners of other apartments in the house on the official website https://kap.minjust.gov.ua, which is administered by the Ministry of Justice of Ukraine, by pre-registering. However, this is possible only if the information about the apartment was entered into the State Register of Real Property Rights from the relevant registers kept by the Bureau of Technical Inventory. The implementation of this right in another case will cause significant difficulties due to the lack of a clear mechanism. The co-owners are also entitled to compensation by the guilty person for damages caused to the common property of the apartment building, in the amount corresponding to the share of each co-owner.

Regarding the responsibilities of co-owners - today they are also set out in law more comprehensively than before. In addition, each co-owner has a new obligation - to provide ongoing inspection and periodic inspection of the apartment building put into operation in the manner prescribed by law throughout the life cycle of the building and be responsible for improper operation in accordance with the law. This approach of the legislator shows that the common property not only generates rights to it, but also imposes on its owners the burden of maintaining the property in the form of a number of very specific responsibilities.

Rights and responsibilities of co-owners in case of creation of condominiums

Right

1) participate in the management of the association in the manner prescribed by this Law and the charter of the association;
2) to elect and be elected to the statutory bodies of the association;
3) to get acquainted with the minutes of the general meeting, to make extracts from them;
4) receive in the prescribed manner information about the activities of the association;
5) require the statutory bodies to protect their rights and the co-owners to comply with the rules of good neighborliness;
6) receive in the manner prescribed by the statute information about the activities of the association;
7) receive from the association for review all financial statements

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Responsibilities
1) perform the duties provided by the charter of the association;
2) comply with the decisions of the statutory bodies adopted within their powers;
3) use the premises for their intended purpose, follow the rules of use of the premises;
4) ensure the preservation of the premises, participate in their reconstruction, restoration, current and capital repairs, technical re-equipment;
5) ensure compliance with the requirements of housing and urban planning legislation for the reconstruction, restoration, current and major repairs, technical re-equipment of premises or parts thereof;
6) prevent violations of the legal rights and interests of other co-owners;
7) comply with the requirements of the rules of maintenance of a residential building and adjacent territory, fire safety rules, sanitary norms;
8) timely and in full to pay the relevant contributions and payments;
9) to compensate for damages caused to the property of other co-owners;
10) perform the obligations to the association provided by the statutory documents;
11) prevent damage to common property, inform the management bodies of the association about damage and failure of technical equipment;
12) observe cleanliness in public places and silence in accordance with the requirements established by law, other responsibilities of co-owners, defined by the charter of the association

As you can see, the rights and responsibilities of co-owners are set out in detail at the legislative level. Their list can be expanded in the charter of condominiums, the relevant documents approved by the decisions of the general meeting of co-owners. In the case of alienation of an apartment or non-residential premises, the new owner acquires all the responsibilities of the previous owner as a co-owner (Part 3 of Article 7 of Law № 417-VIII).

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Shadow of responsibility

The issue of liability of co-owners of apartment buildings is also relevant and unknown to most co-owners of such a house.

In Art. 13 of the Constitution of Ukraine states: property is binding. Property should not be used to the detriment of man and society. This thesis of the Basic Law emphasizes that the owner not only has rights to his property, but also is responsible for it - in our case, not only for his apartment, but also for common property.

General grounds for liability of co-owners are set out in Art. 8 of Law № 417-VIII. The law divides liability into two groups:

1) arises as a result of non-performance or improper performance of their duties by co-owners

2) arises as a result of actions of the authorized person (persons) and / or manager, committed in excess of the powers granted to them.

In the first case (and this is a novelty of Law № 417-VIII), all co-owners are jointly liable for damage, and the liability of each co-owner is determined in proportion to his share of the co-owner.

Co-owner's share - the share of the area of the apartment and / or non-residential premises of the co-owner in the total area of all apartments and non-residential premises located in an apartment building (paragraph 9, part 1 of Article 1 of Law № 417-VIII). This wording allows us to draw the following conclusions:

1) the term "proportional to the share" means that the liability of the co-owner is clearly limited. That is, the situation in which instead of one dishonest co-owner other co-owners will be responsible is excluded - everyone is responsible independently;

2) binding to the "share of the co-owner" means that the co-owner, who has an area of apartment and / or non-residential premises in an apartment building more, will be liable for joint obligations in a larger amount.

Law № 417-VIII states: this principle applies, in particular, in cases of concluding a contract that is binding on all co-owners. The amount of obligations and responsibilities of each co-owner, improperly performing the relevant duties under this agreement, is determined in proportion to his share of the co-owner.

With regard to the second group of liability, which may arise as a result of actions of the authorized person (persons) and / or manager, committed in excess of the powers granted to them, Law № 417-VIII explicitly states that co-owners are not liable for such obligations.

With regard to apartment buildings in which condominiums are created, the provision on liability is established by the provisions of Law № 2866-III. Thus, similarly to homes without condominiums, the responsibility of each co-owner is determined in proportion to his share of the co-owner.

However, the law on condominiums addresses the issue of liability somewhat more broadly. Yes, in accordance with Art. 29 of the Law № 2866-III, co-owners of an apartment building for violation of the legislation on associations are civil, criminal, administrative liability in accordance with the law.

We have already considered above the principles of civil liability of co-owners for joint property. Now let's pay attention to the issue of individual responsibility (civil, criminal and administrative) of the co-owner for their actions.

According to the general rule provided by Art. 1166 of the Civil code of Ukraine, the property damage caused by illegal decisions, actions or inaction to personal non-property rights of the physical or legal person, and also the damage caused to property of the natural or legal person, is compensated in full by the person who caused it.

As an example of the application of Art. 1166 of the Central Committee of Ukraine it is possible to result a widespread case when the person, having forgotten to switch off cranes in the apartment, flooded neighbors. In such circumstances, all damage (the cost of repairs, the cost of damaged items) is subject to compensation by the guilty person. The owner will be to blame in the event that the flooding occurred as a result of improper technical condition of the indoor water supply network.

A person who has suffered as a result of the offender's culpable actions is also entitled to compensation for non-pecuniary damage (Article 1167 of the Civil Code of Ukraine). The amount of damage must be substantiated and proved in court.

Thus, according to h. 2 Art. 1166 of the Civil Code of Ukraine, the person who caused the damage is released from its compensation if he proves that the damage was not caused by his fault. For example, this is the same case related to flooding, but which did not occur through the fault of the owner of the apartment.

The specificity inherent in condominiums is that civil liability may arise directly on the basis of the statute of the association. This provision is expressly provided in Art. 29 of the Law № 2866-III. In Art. 7 of this Law states: the statute must define the responsibility for violating the statute and statutory decisions 

Owners of apartments in apartment buildings can be prosecuted for violating the rules of use of residential premises. Directly the rules for the use of residential premises, for violation of which liability is provided, approved by the Cabinet of Ministers of 08.10.1992 № 572. The rules, inter alia, prohibit:

to use residential premises for carrying out economic activities of an industrial nature;

store explosive or environmentally harmful substances and objects;

sing and shout loudly, use sound equipment and other sources of household noise from twenty-two to eight o'clock;

to carry out on working days from the twenty-first to eight o'clock, and on holidays and non-working days - round-the-clock repair works accompanied by noise;

!!! The owner, lessee (tenant) of the premises in which the repair works are planned, is obliged to inform the residents of the adjacent apartments, residential premises about the beginning of the specified works. With the consent of the residents of all adjacent apartments, residential premises, repair and construction work can also be carried out on holidays and non-working days. The noise level generated during construction works should not exceed sanitary norms.

to keep on balconies and loggias of animals, in particular - a bird and bees.

Violation of the above rules entails bringing the guilty person to administrative responsibility in accordance with Art. 150 of the Code of Ukraine on Administrative Offenses (hereinafter - KUpAP). It establishes liability for violation of the rules of use of residential premises, sanitary maintenance of common areas, stairwells, elevators, entrances, adjacent territories, violation of the rules of operation of residential buildings, residential premises and engineering equipment, their unmanaged maintenance, as well as unauthorized re-equipment and redevelopment. residential buildings and residential premises, their misuse, damage to residential buildings, residential premises, their equipment and facilities.

These offenses entail a warning or imposition of a fine on citizens from 1 to 3 non-taxable minimum incomes (from 17 to 51 UAH) and a warning or imposition of a fine on officials - from 3 to 7 non-taxable minimum incomes (from 51 UAH to 119 UAH) ).

The least common cases are criminal liability. Issues of criminal liability are regulated by articles of the Criminal Code of Ukraine and relate personally to individuals. Therefore, we will not dwell on this type of responsibility.

Not only co-owners can be held liable, but also the condominium or the manager in case of violation of the provisions of the charter of the condominium or in accordance with the contract for the provision of services for the management of an apartment building. The legal consequences of violations are usually regulated in the Charter and the contract, in the absence of special provisions in these documents will apply the general rules of civil and housing law.

To summarize

To date, domestic legislation governing the relations of co-owners regarding the use and disposal of common property is of high quality.

At the same time, it should be recognized that without the co-owners' awareness of their rights and obligations regarding the maintenance of their own property, the latter cannot be effective. Therefore, no less important than the legislative consolidation of the peculiarities of the exercise of property rights in an apartment building is the occupation of the co-owners of the active position of the full owner, rather than an observer waiting for the improvement of his property and other assistance from others.

Olena TREHUBOVA, lawyer, Kyiv  ( source ) ​

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