Disputes on compensation for damage to communal property

Disputes on compensation for damage to communal property In accordance with paragraph 62 of the Rules for the Use of Thermal Energy, approved by the Order of the Minister of Energy of the Republic of Kazakhstan dated December 18, 2014 No. 211, authorized persons of the consumer (the management body of the condominium facility, KSK) keep in proper technical condition and ensure the safety of the communal (intra-house) heating and hot water supply system, (common-house) commercial metering devices and other heat-consuming installations that constitute common-house property. She filed a lawsuit against KSPK "N", A. for compensation of material damage, arguing that on November 23, 2016, due to the fault of the tenants living in apartment No. 27, located at 10 A.Moldagulova Avenue in Aktobe, as a result of a riser break, apartment No. 23, located one floor below, belonging to her, was flooded.. As a result of the flooding of the apartment, she suffered material damage in the amount of 1,078,010 tenge, which is jointly and severally recoverable from the defendants. The lawsuit was partially satisfied by the decision of the Aktobe City Court dated April 4, 2018. With A. in favor of K. material damage was recovered in the amount of 1,078,010 tenge. By the resolution of the judicial Board for Civil Cases of the Aktobe Regional Court dated June 26, 2018, the decision was changed.

Disputes on compensation for damage to communal property

The amount of material damage to be recovered has been reduced from 1,078,010 tenge to 235,519 tenge. The rest of the solution remains unchanged. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of local courts and issued a new decision to dismiss K.'s claim. on recovery of material damage from A. In the remaining part, the decision of the appellate instance was overturned, the case in this part was sent for new consideration to the judicial board for civil cases of the Aktobe Regional Court on the following grounds. It follows from the case file that on November 23, 2017, apartment No. 23, located at No. 10 A.Moldagulova Avenue in Aktobe, belonging to plaintiff K., was flooded. The flooding of the apartment occurred as a result of a breakthrough in the main heating riser passing through the bathroom of apartment No. 27 of defendant A., who lives on the floor above. Satisfying the plaintiff's claims, the court of first instance, referring to the provisions of the legislation obliging the owner of the dwelling to keep it in proper condition, indicated that the hot water pipe had broken in A.'s apartment, and therefore he should be responsible for compensating K. Leaving the decision unchanged, the appellate instance pointed out that since the heating system pipeline, which caused flooding of the plaintiff's apartment, passes through the defendant's apartment, the latter is obliged to compensate for the damage. Meanwhile, these conclusions cannot be recognized as based on comprehensively researched circumstances of the case and made with the correct application of legal norms. When considering another civil case on A.'s claim to KSPK "N" for damages, the court of appeal found that on November 23, 2017, in apartment No. 27, owned by A., the pipe of the hot water supply and heating riser burst, which also passes through the plaintiff's apartment. From the response of JSC "T" dated May 18, 2018 and the explanations of the involved specialist M. It should be noted that the heating system of the 9-storey residential building No. 10 on A.Moldagulova Avenue in Aktobe has been in operation since 1980 and is worn out. The main riser of the supply pipeline is laid from the basement to the attic through adjacent apartments No. 23, No. 27. Due to a breakthrough in the heating supply pipeline located in apartment No. 27, the apartments were flooded. The maintenance of communal power grids, including the main heating riser, which constitute communal property, is the responsibility of KSPK "N".

Before each heating season, KSPK "N" is obliged to carry out acceptance (technical, stipulated by the act of technical readiness) tests and commissioning of heat-consuming installations, including hydraulic tests and flushing of the heat supply system, commissioning of heat-consuming installations. However, the service organization KSPK "N" did not conduct these events in the residential building No. 10 on A.Moldagulova Avenue in Aktobe before the start of the 2017-2018 heating season. Representative of the State Institution "Department of Energy and Housing and Communal Services of Aktobe region" B. He explained that at the request of A., together with representatives of JSC "T", a visit and inspection of the general heating riser of the residential building No. 10 on A.Moldagulova Avenue in Aktobe was carried out. As a result of the inspection, it was concluded that this riser is located in apartments, but belongs to the common property of the condominium facility and the KSPK is responsible for its maintenance. In accordance with paragraph 24 of Article 2 of the Law "On Housing Relations", common property is parts of a condominium facility (entrances, stairs, elevators, roofs, attics, basements, non-residential or communal engineering systems and equipment, subscriber mailboxes, land, including landscaping elements and other common property), except for premises., which are individually (separately) owned. According to paragraph 62 of the Rules for the Use of Thermal Energy, approved by the Order of the Minister of Energy of the Republic of Kazakhstan dated December 18, 2014 No. 211, authorized persons of the consumer (the management body of the condominium facility, KSK) keep in proper technical condition and ensure the safety of the communal (in-house) heating and hot water supply systems, ensure the safety of (communal) commercial metering devices and other heat-consuming installations that form the common property. Legal entities that manage a condominium facility maintain heat-consuming installations independently or under an agreement with a specialized organization. It follows from the above that the disputed pipe belongs to the communal heating and hot water supply system, therefore, the obligation to compensate for damage caused as a result of a breakthrough in the common riser of the heating system should be borne by the managing organization KSPK "N."

Consequently, there is no fault of defendant A. in the flooding of the plaintiff's apartment. According to paragraph 1 of Article 917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full. In support of the claim, K. presented to the court commodity receipts, receipts, receipts attesting to expenses incurred in the amount of 1,078,010 tenge. The case file also contains an assessment report of "K" LLP dated December 4, 2017 No. 1524, according to which the damage amounted to 234 519 tenge. There are significant discrepancies in the amount of damage caused in the submitted documents and calculations. The stated circumstances are subject to verification and proper legal assessment. During the new review, the court should eliminate the above shortcomings, in accordance with part 4 of Article 15 of the CPC, create the necessary conditions for the parties to exercise their procedural rights to a full and objective investigation of the circumstances of the case, determine the evidence that each party must provide in support of their claims and objections, while maintaining objectivity and impartiality to verify the validity of the claims. 

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