Utility recovery lawsuits (after the cancellation of a court order for the recovery of utility services)

Jurisdiction.

Cases of this category are considered at the location of the defendant, his place of residence in the order of the claim proceedings.

Pre-trial preparation.

When preparing cases for trial, the legal status of the dwelling, the circle of persons living in the dwelling, their performance of duties to pay for services rendered, the period of debt formation, and the grounds for their accrual are established.

Persons involved in the case.

The plaintiff is a legal entity, regardless of its organizational and legal form, as well as an individual entrepreneur providing utilities, a cooperative of apartment owners, and other interested parties who are either performers providing utilities to consumers or organizations selling utilities. The defendant is a consumer, a citizen who uses public utilities for personal, family, household and other needs unrelated to business activities, or an individual entrepreneur or a legal entity that consumes these services.

Evidence and proof.

The obligation to pay timely fees for the maintenance of common property and utilities is provided for in articles 50, 42-1 of the Law on Housing Relations (hereinafter referred to as the Law). According to the specified norms of the Law, the owners of premises (apartments) are required to participate in the costs of maintaining the common property of the condominium facility. These expenses are made monthly and are set in proportion to the share of the owner of the premises (apartment) in the total property. Issues related to the choice or change of the form of management of the condominium facility and the approval of the amount of contributions for the management and maintenance of the common property of the condominium facility require mandatory consideration and approval at a meeting of the owners of the premises (apartments).

It is necessary to pay attention to the specifics in the application of the statute of limitations – in cases of this category, the requirement for debt collection for the maintenance of the common property of a condominium facility, according to article 50 of the Law, does not apply to the statute of limitations.

The obligation to pay these amounts, as a rule, arises from the following category of persons: the tenant of the residential premises under the lease agreement from the moment of conclusion of such an agreement; the tenant – from the moment of conclusion of the lease agreement; a member of the housing cooperative – from the moment of provision of the residential premises by the cooperative; the owner of the residential premises from the moment of ownership of the residential premises, family members the tenant and the owner – from the moment of moving in and registering for a residential visit.

The subject of proof

there is a duty to pay for utilities and their amount. Utility fees include fees for the maintenance of common property, for cold and hot water supply, sanitation, electricity and heat supply, gas supply, and garbage collection. The amount of the fee is calculated based on the volume of services consumed, which are determined either by meter readings or by consumption standards.

Features of the operative part of the decision.

When satisfying a claim, it is necessary to correctly state the operative part of the decision, which should specify the period of recovery and the amount.

Example.

As a rule, the reasons for cancellations and amendments of judicial acts in cases of this category are the absence in the case file of documents confirming the defendant's ownership of the dwelling, or the basis of residence in the dwelling, its area, as well as documents confirming the validity of tariffs for the provision of services. KSK filed a lawsuit against A.S.K. to recover debts for operating costs in the amount of 37,852 tenge and thermal energy – 112,718 tenge. By the court's decision, KSK's claim was satisfied, and the counterclaim to appeal KSK's actions was denied. The court's decision was left unchanged by the decision of the appellate instance. By the decision of the supervisory authority, the judicial acts were annulled, the case was sent for a new judicial review to the court of appeal. When deciding to satisfy the claim, the courts indicated that the defendant lives in a house on the balance sheet of the KSK, which provides services for the maintenance of common property under a public agreement. Whereas in the case file there are no documents confirming the defendant's ownership of the residential premises, or other grounds for his residence, the area of the residential premises, and the minutes of the general meeting of the KSK on the approval of tariffs.

The list of documents attached to the application

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases his claims, which may include:

- title documents, extract from the legal cadastre in relation to real estate;

- technical data sheet;

- certificate of registered rights (encumbrances) on immovable property and its technical characteristics;

- a copy of the defendant's personal account;

- confirmation of tariffs;

- calculation of the amount of debt.

Note. These disputes can be considered in a lawsuit only after the cancellation of the issued order.

Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim

The Constitution.

GK.

GPC.

Laws:

- "On housing relations";

- "About the electric power industry".

Rules:

- organization and functioning of the retail electric energy market, as well as the provision of services in this market, approved by the Order of the Minister of Energy dated February 20, 2015 No. 111

- provision of public utilities, approved by Government Decree No. 1822 of December 7, 2000.

Normative Resolution of the Supreme Court of December 23, 2005 No. 9 "On certain issues of Application by Courts of Legislation related to Debt collection for thermal and electric energy"

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