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Publication date: 24.05.2024
lawyer, 23 years of experience in enforcement.
Damage compensation in case of apartment flooding
The provisions of Art. 22 of the Civil Code of Ukraine establishes that a person who has suffered damages as a result of a violation of his civil right has the right to compensation. Damages are, in particular, losses that a person has suffered in connection with the destruction or damage of an item, as well as expenses that a person has incurred or must incur in order to restore his violated right (real damages).
According to Art. 1166 of the Civil Code of Ukraine, property damage caused by illegal decisions, actions or inaction to the personal non-property rights of an individual, as well as damage caused to the property of an individual, shall be compensated in full by the person who caused it. Exception – a person is released from the obligation to compensate for the damage caused by him, if he proves that the damage was caused through no fault of his.
As explained by the Plenum of the Supreme Court of Ukraine in Clause 2 of Resolution No. 6 dated 27.03.1992 "On the practice of consideration by courts of civil cases based on claims for compensation for damage", when considering claims for compensation for damage, the courts must keep in mind that the damage caused to a person and the property of a citizen, or the damaged property of a legal entity, shall be compensated in full by the person who caused it, provided that the latter's actions were unlawful, there is a direct causal connection between them and the damage, and the said person is at fault. For delictual liability, it is necessary to have the composition of the offense:
- pity;
- illegal behavior of the causer of damage;
- the causal relationship between the damage and the behavior of the perpetrator;
- wine
In accordance with Clause 2.3.6 of the Rules for the Maintenance of Residential Buildings and Outbuildings, approved by the Order of the State Committee on Housing and Communal Affairs dated 17.05.2005 No. 76 "On Approval of the Rules for the Maintenance of Residential Buildings and Outbuildings", in the event of flooding, apartment accidents, the appropriate an act, the form of which is provided for by Appendix No. 4 of this Order.
In accordance with Part 2 of Art. 7 of the Law of Ukraine "On Housing and Communal Services", the consumer is obliged to:
- enter into contracts for the provision of housing and communal services in the manner and in the cases specified by law;
- to take measures in a timely manner to eliminate identified problems related to the receipt of housing and communal services that arose due to his fault;
- to carry out repairs and replacement of sanitary-technical devices and devices, equipment, other common property damaged due to his fault, which is proven in accordance with the procedure established by law, at his own expense.
If the person responsible for the flooding of the apartment refuses to voluntarily compensate for the damage caused by him, compensation is possible in court, by filing an appropriate lawsuit.
In accordance with Part 3 of Art. 177 of the Housing Code of the Ukrainian SSR, if the need to carry out ongoing internal repairs is caused by damage to parts of the building, engineering equipment or is related to major repairs of the building or its structural parts, this repair is carried out by the landlord (housing and building cooperative) or at his expense.
That is, in addition to the person who directly flooded the apartment, a lawsuit can also be filed against the balance-keeper of the building, who, in accordance with the law, manages such property and is responsible for its operation, provided that such an entity is at fault. If the court approves the claim, the damages will be collected from the defendants in different shares.
According to Part 1 of Art. 27 of the Civil Procedure Code of Ukraine, lawsuits against a natural person are filed in court at the place of residence or stay registered in accordance with the procedure established by law. Part 6 of Art. 28 established that claims for compensation for damage caused to the property of individuals or legal entities may be filed also at the place of damage.
The requirements for the form and content of the claim statement, as well as the documents attached to it, are established by Articles 175-177 of the Civil Procedure Code.
The general procedure for consideration of the case by the court is regulated by Chapter III of the Civil Procedure Code.
In accordance with Part 3 of Art. 12 of the Civil Procedure Code, each party must prove the circumstances it refers to as the basis of its demands or objections.
The court, based on the available evidence, conducts a comprehensive review of the case with the aim of rendering a complete and well-founded decision. Based on the result of the review, a decision is made to grant or reject the claim. Refusal to grant a claim can be appealed to the appellate or cassation instance.
Courts do not always take into account the acts of flooding drawn up by housing and operation offices, and offer to carry out a comprehensive examination of the apartment. Although such examinations are free, they are carried out from 6 months to 1 year. During this time, the defendant can carry out a major repair of his apartment, and after eliminating all the defects, it will be extremely difficult to prove the fact of malfunction. If you choose a private expert firm, you will have to incur additional costs, however, such an examination will be much faster.
After the court decision has entered into legal force, the compensation procedure can be considered completed. If the court refused to satisfy the claim, then a further appeal is possible in other instances - appeal or cassation.
If the defendants refuse to comply with the court decision in a voluntary manner, it is necessary to apply to the court that issued such a decision by executive letters or orders, and then apply to the executive services in accordance with the Law of Ukraine "On Executive Proceedings".
The procedure for compensation for damage in case of apartment flooding can take a long time and be quite complicated. The debtor in the specified matter can count on pre-trial dispute regulation, but if the parties do not reach an agreement on the amount of compensation, then judicial dispute regulation of disputes is necessary to resolve the issue.
Legal service "Consultant" will select a lawyer or an attorney who will conduct a legal analysis of the situation, form the appropriate court document (claim to the debtor, statement of claim, response to a statement of claim, motion, etc.), and also help in gathering the evidence base for the most effective resolution of the issue. Service specialists will accompany the process from the beginning to the execution of the court decision. They will also provide advice and help in solving such issues as: Preparation of amicable settlement with the creditor, Arrest for inviolability , bankruptcy of an individual, debt reduction, Change of the debtor, etc.
