Therefore, explanations that gave the Judicial Board on civil cases of the Supreme court about who and under what conditions has the right not to pay fees, can help a lot if there is a conflict regarding the collection of money.
Our argument began in one of the suburban villages, which operated TSN – a partnership of property owners. In this partnership some citizen purchased two plots. A member of the Association lady did not become, and on the site anything to build is not done and in fact the land is not used. However, the Association asked for contributions for two years during which it owned the land. Anything to pay the land owner did not, and TSN went to court. The partnership was asked to collect fees for the use of the common property of the village for two years, plus interest.
In court, the representative of the partnership explained that it was the decision of General meeting of owners, which approved the cost estimates and determined the amount of the monthly contributions for the areas “without the buildings and infrastructure.” According to the plaintiff, if in areas not built anything, this is not a basis for exemption of the owner from the payment of contributions. The local courts sided with the Association.
the Defendant with such decision has disagreed and has reached the Supreme court. There it was studied and explained the main thing – the buyer of the land or house is not obliged to pay for the contributions to TSN. The fact of the acquisition of real estate does not make citizens automatically members of the partnership and users of the common property. And the right to collect money from the gardeners comes into play only if the partnership will have several written in the law of conditions.
In our case, the local courts in their decisions referred to the incumbent at the time the law “On gardening and country noncommercial associations of citizens” ( law No. 66 of 15 April 1998). It said that the lack of agreement between the land owner and the partnership, as well as non-use of the land will not be grounds for exemption from the obligation to participate in the maintenance of the common property.
the Supreme court, this conclusion did not agree. He first explained that the partnership owners can create the owners of several nearby buildings if they are located in areas that have a common border, and “within which there are networks of technical provision”. It’s in the 136th article of the Housing code.
the Supreme court reminded that the law “On state cadastre” (No. 221 dated 24 July 2007) there is no such thing as a common border of land. But it is in the explanations of the Ministry of construction (No. 24192-0Д/04 dated 1 August 2016).
And yet, the Supreme court reminded about the position of the constitutional court, which dealt with precisely this issue. The COP said the following: absence forthe law of uniform regulation of the legal regime of common property in an apartment house and common property individual houses due to differences in the service of private houses and apartment buildings.
the Conclusion of the Supreme court is “the law does not bind the fact of acquisition of ownership rights for a detached house with the emergence of the share in the right of ownership to the common property”. The grounds and procedure for obtaining rights to the common property of the prescribed land and civil laws. And the right to shared objects occur only after they are registered. The Supreme court emphasized – the state registration service private homes, shared objects. Here is their list: engineering networks, transformer substations, distribution centres, shared Parking lots, roads, etc.
the partnership of the owners, if they want to represent them, must bring to the registration authority documents on the common property. In the Unified state register of real estate partnership can be the owner of the common property.
the High court specifically said the local courts have not found any circumstances under which the defendant can be linked to the Association of property owners. Therefore, concludes the Supreme court, “enabling the defendant to the members of the partnership, and the obligation to contribute funds for the maintenance of the common property not based on law”. The dispute is reviewed, and the decisions of local courts abolished.
