The form of the objection to the Statement of claim for collecting the amount of debt for the maintenance of communal property

Specialized Inter-district Economic Court of Almaty to a Judge .............

273 B Baizakova St., 050008, Almaty, Office of the Court: 8 (727) 333-10-70 020203@sud.kz

from: LLP "..........." Director: ..................... BIN .................. legal address: Almaty,

St. .............., 39, sq. m. ..... tel: 8 727 ..............

Proxy representative: Galymzhan Turlybekovich Sarzhanov

IIN: 850722301036. Almaty, Medeu district,050002, Zhibek Zholy ave., 50,

Business center Block, office No. 202. sgt.kz@mail.ru , tel.: 8 707 (708) 578 57 58 ( WhatsApp/Viber).

Objection

on a statement of claim for collecting the amount of debt for servicing communal property

         There is a civil case pending in the Specialized Interdistrict Economic Court of Almaty № .......... dated 31.01.201_ on the claim of the Limited Liability Company "Terrencourt 15" to the Limited Liability Company "......" on debt collection.During the trial, the Plaintiff motivates his claims that, according to the decision of the general meeting of Terrenkur 15 LLP, he was elected a service business and is engaged in servicing communal property.According to the minutes of the general meeting of apartment owners, A fee of 100 tenge per square meter has been set for owners of non-residential premises and that the defendant has not made any payments since April 2013 and ignores despite repeated requests for repayment of the debt. As of February 01, 2017, there was a debt in the amount of 2,868,000 tenge, and according to Article 50 of the Law of the Republic of Kazakhstan "On Housing Relations", owners are required to make payments for housing maintenance.We do not agree with these claims because we consider the filed claim to be unfounded and not subject to satisfaction for the following reasons:

According to Article 31. According to the Law on Housing Relations, a condominium is formed in residential buildings belonging to two or more owners of premises (apartments), and each of the owners of premises (apartments) has the right, at his discretion, to own, use and dispose of premises belonging to him on the right of individual (separate) ownership. The common property of the condominium object belongs to the owners of the premises (apartments) on the right of common shared ownership.Thus, according to the Minutes of the meeting of owners of premises (apartments) of a residential building No. 4 dated 04/14/2014, Terrenkur 15 LLP was elected the subject of service activities and housing maintenance fees of 80 tenge per square meter for owners of residential premises and 100 tenge per square meter for owners of non-residential premises were approved., according to the wound of the approved board in the Terrencourt PC according to the protocol dated 06/20/2008.I would like to point out according to Article 42-1. The Law on Housing Relations "Meeting of owners of premises (apartments)" says:

At meetings of owners of premises (apartments), decisions are considered and made on issues related to the management and maintenance of the condominium facility.

The decision of the meeting of owners of premises (apartments) is formalized by the protocol and should not contradict the legislation of the Republic of Kazakhstan.

The following issues require mandatory consideration and approval at a meeting of the owners of the premises (apartments):

1) related to the choice or change of the form of management of the condominium object; 2) approval of the amount of contributions for the management and maintenance of the common property of the condominium object; 3) decision-making on the conclusion, modification or termination of the management agreement for the condominium object; 4) amendments to the legal cadastre in the judicial authorities;5) changes (extensions, modernization, technical re-equipment, reconstruction, restoration, capital repairs) of an apartment building (residential building); 6) related to making a decision to carry out major repairs of the common property of a condominium facility and (or) determining the amount of monthly contributions to accumulate money in a savings account; 7) spending money accumulated in a savings account; 8) choosing and (or) refusing the services of the entity 9) approval of the cost estimates for the maintenance of the common property of the condominium facility. (According to the order No. 246 dated 26.03.2015, the acting Minister of National Economy of the Republic of Kazakhstan on approval of the Methodology for calculating the cost estimates for the maintenance of common property)

The meeting may organize an initiative group to select the form of management of the condominium facility.

The meeting is held on the initiative of the management body of the condominium facility, as well as at the request of at least a tenth of the owners of the premises (apartments). Local executive authorities have the right to initiate a meeting of the owners of the premises (apartments) to decide on the selection or hiring of an apartment building manager (manager) or a legal entity to manage the condominium facility.         The initiators of the meeting of the owners of the premises (apartments) notify all the owners of the premises (apartments) at least ten days in advance about the date, place and agenda of the upcoming meeting.

The owners of the premises (apartments) have the right to consult the initiators of the meeting with the materials necessary for decision-making.

The minutes of the meeting of the owners of the premises (apartments) indicate:

1) the location of the condominium facility; 2) the date and time of the meeting; 3) the total number of owners of premises (apartments);4) the number of owners of premises (apartments) present at the meeting;5) the chairman and secretary of the meeting; 6) the agenda of the meeting;7) the persons who spoke at the meeting;8) the form and the voting results; 9) the decision taken by the meeting.The minutes are signed by the Chairman and the secretary of the meeting.

 

A registration sheet for the owners of the premises (apartments) participating in the meeting is attached to the protocol, indicating their surnames, first names, patronymics (if any), and rooms (apartments).

The decision is binding on all owners of premises (apartments) and is a document for the consideration of disputes and other issues in courts and other government agencies as an expression of the will of the owners of premises (apartments), and also serves as the basis for calculating housing assistance.

In the Minutes of the meeting of owners of premises (apartments) of a residential building No. 4 dated 04/14/2014, namely, in the sheet (list) of registration of owners of premises participating in the meetings, there are no owners of non-residential premises, whereas according to Article 37. The Law on Housing Relations states in paragraph 3 that the owner of non-residential premises cannot participate in resolving issues of the condominium that do not affect his interests. Other owners may not participate in resolving issues affecting exclusively the interests of the owners of non-residential premises. The exceptions are issues related to the use of common property.   It is also written in paragraphs 1 and 2 of Article 37 of the Law

The owner of non-residential premises is not obliged to participate in the general expenses related to those parts of the common property that are exclusively related to the use of residential premises.

Expenses related to those parts of the common property that are exclusively related to the use of non-residential premises are borne by the owners of such premises.

Thus, it should be noted that the owners of non-residential (office premises) bear only expenses related to those parts of the common property that are exclusively related to the use of non-residential premises.It should also be emphasized that according to the Minutes of the meeting of owners of premises (apartments) of a residential building No. 4 dated 04/14/2014, a housing maintenance fee of 80 tenge per square meter for owners of residential premises and 100 tenge per square meter for owners of non-residential premises was approved, according to the approved fee, in the Terrencourt PC according to the protocol dated 06/20/2008.Whereas the previously approved fee in the Terrencourt PC, according to the protocol dated 06/20/2008, it is indicated: Share contributions for maintenance and operations amount to 80 tenge per square meter of residential and non-residential premises and parking lots, which contradict the Plaintiff's statements in the statement of claim.The plaintiff also refers to Article 50 of the Law on Housing Relations and indicates that the Owners of the premises (apartments) are required to participate in the costs of maintaining the common property of the condominium.

 

However, the plaintiff further does not pay attention to the fact that the amount of expenses for the maintenance of the common property of the condominium facility is set in proportion to the share of the owner of the premises (apartment) in the common property and the Owners of non-residential premises are required to cover expenses in excess of the established estimate (According to order No. 246 dated 26.03.2015, acting Minister of National Economy of the Republic of Kazakhstan on approval of the Methodology for calculating the cost estimates for the maintenance of common property) for the use of common property related to their production, trade and similar activities.Also, regarding the defendant's disregard for payments since 2013, I would like to clarify that according to PC Terencourt's letter No. 47 dated 09/17/2014, an answer was given to which no reasoned response has been received to this day. (see the letter in the appendices)Based on the above,

I ASK THE COURT:

The Plaintiff's statement of claim for collecting the amount of debt for servicing communal property must be refused.

Sincerely, Proxy Representative:                                                            _________________/ Sarzhanov G.T. "___"_____________201_ the year. 

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