The courts did not take into account that the arising legal relations for the reimbursement of household expenses are regulated not by the norms of civil legislation, but by the norms of legislation on housing relations

LLP "Z" (hereinafter referred to as the Plaintiff) filed a claim against LLP "F" (hereinafter referred to as the Defendant) for debt collection in the amount of 441,577 tenge. The claim is motivated by the fact that the Defendant, on the basis of a purchase and sale agreement dated March 19, 2012, is the owner of a non-residential building with an area of 639 square meters located in the building of the apartment complex "R". According to the current legislation, the Defendant is obliged to participate in all expenses for the maintenance of the house in proportion to the area of the premises belonging to him by right of ownership. The Defendant's debt as of July 31, 2012 amounted to 441,577 tenge. The claim was dismissed by the decision of the specialized interdistrict Economic Court of Almaty on October 24, 2012. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty City Court dated December 12, 2012, the decision of the court of first instance dated October 24, 2012 remained unchanged. By the decision of the Cassation judicial Board of the Almaty City Court dated March 06, 2013, the decision of the Court of Appeal dated December 12, 2012 was left unchanged. The petition for the initiation of supervisory proceedings states that during the consideration of the case by the courts, violations of the norms of the substantive and procedural law were committed, and the circumstances of the case of legal significance were not taken into account. The opinion was expressed on the cancellation of the appealed judicial acts and on the issuance of a new decision on the satisfaction of the claim. The Supervisory Judicial Board overturned the decision of the specialized interdistrict Economic Court of Almaty, the decisions of the appellate and cassation judicial boards of the Almaty City Court, and issued a new decision. She collected from LLP "F" in favor of LLP "Z" a debt for general household expenses in the amount of 441,577 (four hundred and forty-one thousand five hundred and seventy-seven) tenge and 13,248 (thirteen thousand two hundred and forty-eight) tenge for reimbursement of state duty. The petition of LLP "Zh" was satisfied on the following grounds. It can be seen from the case file that, in accordance with the purchase and sale agreement dated March 19, 2012, the Defendant is the owner of a non-residential building with an area of 639 square meters. m in the residential complex "R". The Court of First instance, when considering the case, concluded that in accordance with paragraph 3 of Article 18 and paragraph 3 of Article 35 of the Law "On Housing Relations" (hereinafter referred to as the Law), the owners of premises located in one residential building are required to participate in the costs of its maintenance. The cost of each owner is determined by the ratio of the usable area of individually owned residential and non-residential premises to the total area of the apartment building.

The courts did not take into account that the arising legal relations for the reimbursement of household expenses are regulated not by the norms of civil legislation, but by the norms of legislation on housing relations

At the same time, the court of first instance indicated that the parties had not concluded a contract for the maintenance and operation of the residential complex "R". The Court, with reference to Article 7 of the Civil Code, indicated that the Defendant had no grounds for obligations to the Plaintiff. The Court pointed out that the Plaintiff had not provided evidence about the amount of actual expenses incurred for the maintenance of the residential complex, that the tariffs had been approved by the Plaintiff, although they should be set by the owners of the premises. However, the court of first instance did not take into account the data provided by the Plaintiff on the calculation of tariffs and the cost structure for the maintenance of the residential complex. The court did not take into account that there is no reliable information in the case file that the owners of the residential premises at the general meeting reviewed the amount of expenses for the maintenance of the residential complex.  The defendant, disagreeing with the version of the contract provided to him, and offering the text of the disagreement, did not file a lawsuit with the court to consider these differences. The Court of Appeal, referring to article 42 of the Law, indicated that at the time the developer transferred the residential complex to the Plaintiff for maintenance, there was no agreement between the owners and the Plaintiff to manage the condominium facility. The court pointed out that, contrary to Article 42-2 of the Law, the owners of the premises (apartments) did not approve the amount of contributions for the maintenance of the common property of the condominium facility, and the rate of 135.75 tenge per square meter of the premises was not confirmed. However, the court of appeal did not take into account that the Defendant, as a participant in shared ownership in the residential complex "R", did not propose to consider by the general meeting of owners the issue of the amount of expenses for the maintenance of the common property of the residential complex. The Court of Appeal concluded that the Plaintiff had failed to prove the Defendant's debt. The court pointed out that the conclusion by one owner of a contract for reimbursement of expenses for the maintenance of a residential building (communal expenses) does not create an obligation for other owners of premises to comply with the terms of this contract, if these owners have not concluded a contract for reimbursement of communal expenses.

The Court of Cassation agreed with these conclusions. However, when considering the case, the local courts did not refute the Plaintiff's calculations on the calculation of debt at the current tariffs for the maintenance of the common property of the residential complex, which include household expenses for electricity, heating, territory protection, and land development costs. Such calculations were made based on the ratio of the total area of the residential complex to the area of the Defendant's premises. When considering the case, the courts were guided by the norms of the Civil Code on the obligation of the owner to bear the burden of expenses for the maintenance of his property. However, the courts did not take into account that the emerging legal relations for the reimbursement of household expenses are regulated not by the norms of civil legislation, but by the norms of legislation on housing relations. The peculiarity of these relations is expressed in the fact that, in accordance with paragraph 3 of Article 22 of the Law, family members of the owner of the dwelling may also be involved in such expenses, although a family member may not be the owner of a share (dwelling) in an apartment building. This obligation is based on the need to maintain the common property of an apartment building (residential complex).

When considering the case, the local courts did not take into account that, in accordance with paragraph 2 of article 37 of the Law, the owners of non-residential premises in a residential building are required to bear the costs that relate to those parts of the common property associated solely with the use of non-residential premises. Contrary to the provisions of Article 65 of the CPC, the Defendant did not provide evidence that would refute the amount of household expenses in proportion to the non-residential premises owned by him, and did not refute the Plaintiff's arguments about calculating such expenses based on the tariff of 135.75 tenge per square meter. m of non-residential premises. Since the conclusions of the local courts do not correspond to the factual circumstances of the case and contradict the applicable legal norms, the supervisory judicial board considered it necessary to cancel the appealed judicial acts and make a new decision on the satisfaction of the claim. In accordance with Article 110 of the CPC, the state fee paid by the Plaintiff in the amount of 13,248 tenge is subject to recovery from the Defendant in favor of the Plaintiff. 

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