It seems that, by attempting to replace the natural and voluntary self-organization of apartment building co-owners with its own administration, the Cabinet of Ministers is modeling a prison for private condominium owners, placing a quasi-administration over them in the form of a "majority" motivated by additional opportunities. Whatever the officials build, they will inevitably build a prison.
“I believe that every right imposes a responsibility, every opportunity obliges, and every property gives rise to a sense of duty.”
John D. Rockefeller
Apartment owners in multi-apartment buildings have finally realized that the authority of utility companies extends only to municipal property, meaning their private property is inaccessible to utility workers. Owners are protesting en masse against the illegal retention of their apartments and houses in communal bondage. The utility sector is losing its social base. Two options remain: either hand over the burden of ownership to the owner and let them go, hoping for the owners' consciousness and self-organization, or find them a new owner who will teach them how to obey, to love bondage, and to tolerate the heavy hand of the master.
The government, as the legal authority for legislative initiative, has clearly chosen the second option. It has decided to implement a kind of collectivization in privately owned apartment buildings—to transform individual homeowners into a kind of collective farm, once called a commune or a kolkhoz, where everything is decided by a majority vote of co-owners under a voluntarily elected or forcibly appointed manager, while the minority is ignored and oppressed. To revive the commune, about which people used to say, "Some get their share, some don't," as happens when everyone eats from the same pot with different-sized spoons. Of course, it's much better if everyone has their own bowl, but the owners of large spoons oppose this—when everyone starts eating from their own bowl, the free ride will end for some.
In accordance with Section 9, Clause 1 of the Coalition Agreement ("Providing Homeowners with Mechanisms for Effective Management and Providing Housing with Quality Services"), the Cabinet of Ministers, as the legal entity with the right to initiate legislation, submitted to the Verkhovna Rada Bill No. 1565 "On the Specifics of Exercising Ownership Rights in Apartment Buildings" (hereinafter referred to as Bill No. 1565). However, the reaction of homeowners to this bill was mixed.
Instead of well-thought-out methods for self-organization among building co-owners based on a free market economy and the expansion of democratic principles of self-organization and self-governance in society, the Cabinet of Ministers, in its draft No. 1565, in a purely Soviet spirit, imposed coercion on the owner to comply with civil law obligations, introducing the vicious principle of collective responsibility against the individual owner, whereby everything, including the disposal of the property of the apartment building, would be decided by a vulgar majority. And the legislator put a big end to all the rights of the owner guaranteed by international agreements, the Constitution, and the laws of Ukraine.
To avoid opening a Pandora's box of hidden conflicts, the legislator, clearly exceeding his authority, decided to intervene with Bill No. 1565, ostensibly for the "common good," in the rights of property owners, who have already been sufficiently abused over the years of independence, illegally holding private housing stock in communal bondage and parasitizing on and stealing other people's property. To this end, the subject of legislative initiative arbitrarily changed the topic specified in paragraph 1 of Section 9 of the Coalition Agreement, replacing the education of society with freedom with further violence. While the Agreement addresses providing homeowners with mechanisms for effective management and provision of housing with high-quality services, the draft law addresses "the specifics of exercising property rights in an apartment building."
Instead of eliminating the violation of owners' rights and offering them mechanisms for effectively managing private, shared property and receiving quality services, the Cabinet of Ministers blatantly interfered with the exercise of private property rights, to which its authority does not extend (the state's authority ends where private property begins). The holder of the right to legislative initiative allegedly forgot that, according to Part 1 of Article 319 of the Civil Code of Ukraine, an owner owns, manages, uses, and disposes of their property at their own discretion, and no government can dictate how to dispose of their private property. However, the developers and parliamentary lobbyists of Bill No. 1565 violated this invisible boundary, which has not yet been properly demarcated in the public consciousness, in the same way that some villagers relocate the boundaries of neighboring garden plots.
By proposing Bill No. 1565 to eliminate the requirement for decisions on the management and use of joint property to be made by the mandatory consent of all co-owners, as stipulated in Articles 358 and 369 of the Civil Code, and instead introduce management and use of joint property by majority vote, the Cabinet of Ministers even seeks to introduce a special regime for exercising ownership rights to joint property by the imperative will of the majority. This is explicitly stated in the explanatory note to Bill No. 1565 by Deputy Prime Minister of Ukraine and Minister of Regional Development, Construction, Housing and Communal Services of Ukraine G. Zubko: "...by recognizing a simple and qualified majority of co-owners' votes for making decisions on the disposal and management of joint property in an apartment building..."
To call a spade a spade, we are talking about yet another instance of socialization of private property. So, the question arises: how did the subject of legislative initiative, when interfering with private property rights, take into account Article 41 of the Constitution of Ukraine, which recognizes private property rights as inviolable, or the provisions of Part 1 of Article 319, Articles 358, and 369 of the Civil Code of Ukraine, in Bill No. 1565? Or were the Constitution and laws of Ukraine not written for them?
The Cabinet of Ministers' proposed "majority," which, according to Bill No. 1565, not only manages but also controls private housing stock, is also problematic. Anyone who believes it will be formed based on the principle of "one vote, one apartment" is mistaken. According to Bill No. 1565, the majority will be formed not by the votes of co-owners, but by the number of square meters they own in the total area of the building.
According to this methodology for forming a ruling majority, those with more square meters will have greater rights not only in the total area of their apartments, but also in the built-in spaces housing social and cultural facilities, as well as in the auxiliary non-residential spaces of attics and basements, which legally belong to the apartment owners but, due to corruption, have ended up in the hands of raiders.
While a co-owner's contribution to the maintenance costs of a privately owned apartment building should correspond to the size of their share in the building, as already regulated by Articles 358 and 369 of the Civil Code, in matters related to the management and disposal of property in an apartment building, the principle of "whoever has more square meters has more rights, and is the majority," is categorically unacceptable, because the "majority," based on the number of square meters, may be a minority in terms of the number of owners. This approach is erroneous, as human rights are not measured by the amount of property owned.
The current law establishes equality of rights for co-owners regardless of the size of their share in the joint property.
In effect, the subject of legislative initiative insists on the introduction by law of a majority formed by property ownership among the most affluent co-owners. This is not simply the primacy of the pack over the individual; it is the legitimization of the social dominance of the rich over the poor.
The "majority" in buildings where apartment owners' rights to auxiliary spaces and the preemptive right of apartment owners' associations to purchase premises built into residential buildings were violated will consist primarily of owners of shops, salons, hairdressers, food service establishments, medical facilities, and the like, as well as raiders who have illegally seized basements and attics through corrupt schemes. The premises they own are large, so when forming a so-called majority, their square footage gives their owners significant, if not decisive, advantages over apartment owners. If Bill No. 1565 is adopted, this "majority" will be able to participate not only in the costs of building maintenance and upkeep, but also in the management and disposal of the entire building's property, thereby exerting dominance over other owners. It will be responsible not only for the maintenance but also for the management of the apartment building as a holistic property complex (household).
The legislator failed to foresee the potential negative consequences of such a "majority" being formed from a de facto minority. Based on such dubious principles, a "majority" would quickly form in a residential building, bankrupting and driving out economically weaker or inconvenient co-owners, making decisions on the unjustified conversion of residential property to non-residential status, selling it, and so on, thereby violating the fundamental rights and legitimate interests of other property owners. What then of Part 1 of Article 358 of the Civil Code, according to which "the right of joint private ownership is exercised by co-owners with their consent"? Or of Article 369 of the Civil Code, according to which "the disposal of property in common joint ownership is carried out with the consent of all co-owners"?
There's no reason to downplay the social aspect of the social tensions created by this approach to forming a "majority." After all, in Kyiv alone, between 5 and 15 auxiliary non-residential premises in private housing stock have been illegally expropriated. Therefore, the legislature should consider how to restore justice and return the auxiliary non-residential premises to their rightful owners so they can maintain the housing stock, rather than play into the hands of raiders and thieves who have illegally seized the apartment owners' resources.
If Bill No. 1565 is adopted, can Ukraine be considered a state governed by the rule of law if it is not the rule of law that truly prevails, but the arbitrary exercise of a simple arithmetic majority, from which individuals are not protected even by the right to legally acquired private property?! With Bill No. 1565, its authors are effectively attempting to revive the flawed principle of collective responsibility. Because they grant the "majority," formed on the principle of "more property, more rights," the right to coerce a minority with less property into fulfilling joint civil obligations, thereby reducing the scope of their rights.
The unlawful initiative of the Cabinet of Ministers, outlined in draft law No. 1565, violates the fundamental principles of private property, guaranteed to citizens by international agreements, the Constitution, and current laws of Ukraine.
The liability of co-owners as owners of individual properties within a private housing stock apartment building—participants in civil law relations—regarding the maintenance of a private housing stock apartment building as common (partial and joint) property is already regulated by law and does not require the adoption of new laws. The establishment of any other procedure for exercising property rights in terms of management and disposal by draft law No. 1565 violates Article 322, Part 1 of Article 358, and Parts 1 and 2 of Article 369 of the Civil Code of Ukraine.
By limiting the rights and worsening the situation of private owners, the developer of Project No. 1565 openly violates Article 22 of the Constitution of Ukraine, which proclaims the following:
- constitutional rights and freedoms cannot be abolished;
— when adopting new laws or amending existing laws, narrowing the content and scope of existing rights and freedoms is not permitted.
Therefore, in accordance with Parts 2 and 3 of Article 22 of the Constitution, the draft must be withdrawn from consideration as unconstitutional. It also contains elements of corruption, narrows the scope and content of the existing rights and freedoms of legal apartment owners—co-owners of auxiliary non-residential premises in multi-apartment private housing buildings—and grants illegal owners of auxiliary premises the authority to dispose of property that is not legally theirs.
It was no coincidence that Bill No. 1565 was submitted to the Verkhovna Rada for registration on December 22, 2014, and to the relevant committee on construction, urban development, and housing and public utilities on December 23, 2014, without a negative opinion from the Main Scientific and Expert Directorate of the Verkhovna Rada. In its summary opinion, the directorate emphasized: "Following the results of its first reading, it is advisable to return the bill to the entity with the right to legislative initiative for revision, taking into account the comments and suggestions made."
Following the first reading, the bill was also deemed appropriate to be returned for revision, but this recommendation was also not implemented.
The author of Project No. 1565 likely deliberately violated the Constitution and laws of Ukraine. The subject of legislative initiative and the parliamentary lobby, primarily the Ministry of Regional Development, decided to eliminate the violation of the Constitution and laws of Ukraine in Project No. 1565 in an unacceptable manner: instead of bringing it into compliance with current legislation, they decided to amend the articles of laws that Project No. 1565 contradicts. The logic is purely Bolshevik, as Lenin puts it: if the facts contradict (Marxist – T.K.) theory, then so much the worse for the facts. In other words, they believe that if laws impede their legislative initiative, then so much the worse for the laws.
To address the glaring shortcomings of Bill No. 1565, the legislator and his parliamentary lobby plan to amend not the bill under review, but the Civil and Housing Codes, the law on condominium associations, the law on housing and utilities, and, if left unchecked, even the Constitution. This kind of legislation can go far. The saying of former Justice Minister Elena Lukash comes to mind: "The Constitution is not an icon. Don't pray to it."
The moral and ideological obsolescence of Project No. 1565 lies in its restriction of private property rights, which contradicts the national ideal of Ukrainians, which has historically been based on the primacy of private property rights over state and collective ownership. The developers of Project No. 1565 underestimated the potential of owners for self-organization and ignored their ability to self-organize in the forms required by the situation.
Today, Ukrainian society is on the threshold of fundamental change. A struggle between slavery and freedom, between state coercion and the free individual's choice, between the historical legacy of state serfdom and the liberties of the Cossacks and the Magdeburg Law, has already begun (and is growing more intense every day) within the Ukrainian people. Therefore, Bill No. 1565 is nothing more than a stumbling block on the path to building a free, democratic, legal society in Ukraine, which is impossible without free people, just as human freedom is impossible without a fully-fledged, not a diminished, institution of private property.
Near the Chase Manhattan Bank in New York City, there's a stone bearing John D. Rockefeller's creed. One of the commandments inscribed on it is: "I believe that every right brings a responsibility, every opportunity a duty, and every property a debt." Prophetic words! It is this triad that drives any self-organization as the key to progress. It is precisely because these principles shaped the United States as a country of free people. The United States today is a powerful country of free people, while Ukraine, where lawmakers disagree, is a country of slaves and masters.
Project No. 1565 recreates in condominiums the system that was introduced in Soviet prisons and that still exists in some places. Soviet prison and camp administrations were in tacit collusion with the criminal underworld, who acted as guards. It seems that, by attempting to replace the natural and voluntary self-organization of apartment building co-owners with its own administration, the Cabinet of Ministers is simulating a prison for private condominium owners, placing a quasi-administration over them in the form of a "majority" motivated by additional resources. Whatever the officials build, they will inevitably build a prison.
According to Part 2 of Article 19 of the Constitution, "state authorities... their officials are obligated to act only on the basis, within the scope of their authority, and in the manner stipulated by the Constitution and laws of Ukraine." By interfering with private property rights, the government exceeded its authority and violated the Constitution and laws of Ukraine, which constitutes a crime. Article 41 of the Constitution of Ukraine proclaims private property inviolable, and according to Article 321 of the Civil Code of Ukraine, "the right of ownership is inviolable."
To be or not to be legally inviolable in Ukraine for legally acquired private property? That is the question.
P.S. As this material was being compiled, it became known that the Ukrainian parliament had passed bill No. 1565, "On the Specifics of Exercising Ownership Rights in Apartment Buildings," in its second reading. It was quickly discovered that some members of parliament had taken this bill at face value as a legal way to overcome the monopolistic abuses of housing and communal services.
At the time of publication, the Speaker of the Verkhovna Rada had not yet signed the adopted law. The bill has not yet been submitted to the President of Ukraine for signature. There's still a fight to be won!
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