The right of common ownership of an apartment building is exercised by the co-owners by their consent, and therefore the creation of certain objects in the local area (in particular, a concrete staircase, a concrete ramp, paving stones adjacent to the stairs) requires coordination with its co-owners.
This conclusion was made in one of the cases by the Supreme Court as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation.
The press service of the Supreme Court reported on October 28 that the plaintiff is the owner of an apartment in an apartment building. The defendant, without obtaining the consent of the co-owners, reconstructed his own apartment into a medical institution and built an entrance to it in the local area, dismantled the flowerbed, laid paving stones and installed stairs and a ramp into the apartment.
The defendant created obstacles for the plaintiff to use the adjacent territory of their residential building, as well as free access to the basement premises located to the right of the defendant’s installed stairs and ramp. The plaintiff asked the court to oblige the defendant to dismantle the unauthorized construction and restore the land plot to its previous condition.
The court of first instance, with whose decision the appellate court agreed, rejected the claim.
The CCCC overturned the previous decisions, adopted a new decision, obliging the defendant to bring the disputed object to its previous state by demolishing the constructed structures at the defendant’s expense, and made the following legal conclusions.
All owners of apartments and non-residential premises in an apartment building are co-owners by the right of joint ownership of the joint property of the apartment building (Part 2 of Article 382 of the Civil Code of the Russian Federation).
The use of the local area must be for its intended purpose; the creation of certain objects in the local area (in particular, a concrete staircase, a concrete ramp, paving stones adjacent to the stairs and a ramp) should only be done with the consent of the co-owners and provided that such objects do not lead to violations of the rights of other co-owners in an apartment building; the right of common ownership of an apartment building is exercised by the co-owners by their consent, therefore the creation of certain objects in the local area requires agreement with the co-owners.
The courts did not pay attention to the fact that the land plots on which apartment buildings are located, as well as the buildings, structures and adjacent territory belonging to them, which are jointly owned by the owners of apartments and non-residential premises in the house, are transferred free of charge for ownership or permanent use to the co-owners. apartment building (parts 2, 3 of Article 42 of the Land Code of Ukraine).
The procedure for using land plots on which apartment buildings are located, as well as buildings, structures and adjacent areas belonging to them, is determined by the co-owners; The land plot belongs to the co-owners of the residential building on the right of common joint ownership, which, together with the common property and auxiliary premises, is the property of the co-owners who determine the procedure for its use.
The exercise by a co-owner of his rights cannot violate the rights of other co-owners (Part 2 of Article 6 of the Law of Ukraine “On the Peculiarities of Exercising Ownership Rights in an Apartment Building”).
Co-owners are obliged, in particular, to use the common property of an apartment building for its intended purpose (Clause 3, Part 1, Article 7 of the Law of Ukraine “On the Peculiarities of Exercising Ownership Rights in an Apartment Building”).
Consequently, the land on which the defendant built the disputed objects is a local area and is intended for the placement and maintenance of a residential building and its buildings and structures and must satisfy the interests of all residents of this house; the controversial objects were created in the local area without the consent of the co-owners.
In the case of completed objects are subject to demolition.
Source: Racurs
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