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Publication date: 22.05.2024
lawyer, 23 years of experience in enforcement.
In essence, apartment repair is a domestic contract, the relationship of which is regulated by Article 865 of the Civil Code of Ukraine.
In accordance with the provisions of the above-mentioned article, under the contract of household subcontracting, the contractor carrying out business activities undertakes to perform certain work on behalf of an individual (customer) intended to satisfy household and other personal needs, and the customer undertakes to accept and pay for the work performed.
The legislation on the protection of consumer rights, namely the Law of Ukraine "On the Protection of Consumer Rights" applies to relations arising from a household contract that are not regulated by the Code.
The most common type of household contract is the performance of repair work in a room, apartment, etc. Such agreements can be both written and oral. It is important that the executor of the works at least draw up a receipt for receiving money: in what amount and for what works with the indication of quantitative indicators. The specified receipt can be evidence when deciding the issue of debt recovery for non-performance of repair works or for their poor performance.
According to Art. 22 of the Civil Code of Ukraine, a person who has suffered damages as a result of a violation of his civil right has the right to compensation. Losses are considered:
- losses suffered by a person in connection with the destruction or damage of a thing, as well as expenses that a person incurred or must incur to restore his violated right (real damages);
- income that a person could actually receive under normal circumstances, if his right had not been violated (forgotten benefit).
Damages are compensated in full, unless the contract or law provides for compensation in a smaller or larger amount.
The provisions of Part 3 of Art. 10 of the Law of Ukraine "On the Protection of Consumer Rights" dated 12.05.1991 No. 1023-XII stipulates that in case of detection of deficiencies in the work performed (service provided), the consumer has the right to demand:
- free of charge elimination of deficiencies in the work performed (service provided) within a reasonable time;
- a corresponding reduction in the price of the work performed (service provided);
- free production of another item from the same material and of the same quality or repeated performance of the work;
- compensation for damages caused to him with elimination of deficiencies in the work performed (service provided) by his own efforts or with the involvement of a third party;
- realization of other rights stipulated by the current legislation on the date of conclusion of the relevant contract.
Such demands may be made in case of detection of defects during the acceptance of the performed work or during its execution, and in case of impossibility of detection of defects during the acceptance of the performed work - during the warranty or other period established by the contract, or within 2 years from the date of acceptance of the performed work work
According to the provisions of Part 6 of Art. 882 of the Civil Code of Ukraine, the customer has the right to refuse to accept the works in case of detection of defects that exclude the possibility of using the object for the purpose specified in the contract and cannot be eliminated by the contractor, the customer or a third party.
Before applying to the court with a claim for recovery of the debt amount, it is possible to first apply to the debtor with a pre-trial written claim/requirement for the recovery of the amount of funds in the amount of non-fulfillment of obligations, in accordance with Art. 530 of the Civil Code of Ukraine.
After considering the claim, the contractor can provide an answer and explain the reasons for the poor performance of the work or deny the assessment of their quality and other arguments of the customer, and therefore, after receiving such a letter, you can find out what evidence the contractor will use in the dispute, and potentially receive evidence that will confirm the customer's requirements during the trial.
In case of receiving a negative answer or the absence of any answer from the executor of the work, you should apply to the court with a claim for the protection of consumer rights and a demand for compensation for material losses caused by deficiencies in the work performed or an obligation to perform actions (perform certain works).
The requirements for filing a claim are contained in Art. 175-177 of the Civil Procedure Code of Ukraine.
The lawsuit is filed at the place of residence of the plaintiff or at the location of the defendant or at the place of performance of the contract.
In accordance with Part 3 of Art. 22 of the Law of Ukraine "On the Protection of Consumer Rights", consumers are exempted from paying court fees for lawsuits related to the violation of their rights.
In the absence of grounds for leaving the statement of claim without movement, returning the statement of claim (Article 185 of the Code of Criminal Procedure of Ukraine) or refusing to open proceedings (Article 186 of the Code of Criminal Procedure of Ukraine), the court shall open proceedings in the case within 5 days from the date of receipt of the statement of claim or statement on elimination of deficiencies .
The court makes a decision on the basis of a comprehensive study of the evidence, which must meet the criteria of propriety, admissibility, reliability and sufficiency.
During the court proceedings, in order to prove the performance of repair works of inadequate quality or unjustified overestimation of the price of the works, it may be necessary to appoint and carry out an examination.
The real value of construction objects, structures and materials, the cost of construction and installation and finishing works, and the amount of damage is determined by the construction and commodity expertise. An examination of this type is also carried out in cases of low-quality repairs, suspicions of overestimation of the estimated cost of works, inconsistency of the performed works with the technical documentation for the construction object, etc.
In the case of a negative outcome for the plaintiff, the court decision can be appealed in the appeal procedure.
According to the provisions of Art. 354 of the Civil Procedure Code of Ukraine, an appeal against a court decision is submitted within 30 days from the day of its announcement.
If during the case review, the plaintiff proves that the defects were caused by the executor's fault during his poor repair, then the court will satisfy the claims.
According to Art. 23 of the Civil Code of Ukraine, a person has the right to compensation for moral damage caused as a result of violation of his rights.
Part 1 of Art. 1167 of the Code defines: first, the person responsible for moral damage, namely, the person who caused it; and secondly, the general conditions for compensation for moral damage - and among others - the presence of the perpetrator's fault, except for the cases established in part 2 of this article.
According to clause 9 of the Resolution of the Plenum of the Supreme Court of Ukraine No. 4 of 31.03.1995 "On judicial practice in cases of compensation for moral (non-pecuniary) damage", the amount of compensation for moral (non-pecuniary) damage is determined by the court depending on the nature and extent of suffering (physical, mental, mental, etc.) suffered by the plaintiff, the nature of non-property expenses (their duration, possibility of recovery, etc.) and taking into account other circumstances.
Under such circumstances, the court levied moral damages in the decision on case No. 667/8832/14-ts dated 10.10.2018.
In accordance with the provisions of Art. 272 of the Civil Procedure Code of Ukraine, copies of the full court decision are handed over to the participants of the case who were present at the court session, immediately after the announcement of such a decision. If a summary decision is announced at a court session, the court sends a copy of the full court decision to the parties within two days from the date of its drafting.
According to Part 1 of Art. 12 of the Law of Ukraine "On Enforcement Proceedings" dated 02.06.2016 No. 1404-VIII, court decisions for enforcement may be presented within 3 years. Thus, after the court decision has entered into force, in order to receive compensation, after receiving the relevant court decision, it is necessary to apply to the state executive service or to a private executor with an application to open executive proceedings.
Legal service "Consultant" will provide qualified legal services for debt collection, debt collection lawyer and help with debt recovery.
A debt recovery lawyer or a debt lawyer will provide debt collection services, which consist of the following: filing a claim for debt collection and following up on the execution of the specified court decision.
