About a contract problem between ЖЭКом and residents: people won't be able to win court against ZhEKA because the Ukrainian legislation made them slaves

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NikolayevetsAlexander Polishchukthe last two years doesn't pay for services ZhEKA. And all this time is in lawsuits with "Areand's" state of emergency which provides zhilishchno - utilities.Alexander Polishchukrefers to the Law of Ukraine (LU) "About zhilishchno - utilities" according to which "the relations between participants of the contractual relations in the sphere zhilishchno - utilities are carried out only on a contract basis" (Art. 19).Alexanderconsiders thatif there is no contract - there are no debts also.

InhabitantsNikolaev Nadezhda MalyutinaandNikolay Zozulinetsare in the same situation. Their houses are served by ZhKP "South" which filed a lawsuit against them for debts. People try to prove in court that aren't with ЖЭКом in the legal relations, so, each other have to nothing.

In case nikolayevets win court, it becomes precedent in the city and in Ukraine as a whole, and the population in large quantities will cease to pay ЖЭКам for services which actually often doesn't receive. But the Nikolaev officials consider that the such won't occur never and that inhabitants - respondents in court have no chances of a victory.

We will consider in more detail than a situationPolishchuk,MalyutinaandZozulentsa.

In 2004 the Verkhovna Rada accepted the "About Zhilishchno — Utilities" STORAGE which ZhEKI only on the basis of the contract with residents obliges to work. In 2005 the Cabinet issued the Resolution No. 560 in which the standard contract between ЖЭКом and residents is stated.

"Areanda" as private enterprise began the work in 2005. Andлександр Polishchuk, which lives in the house on Lenin Avenue, 141а, first paid a rent partially. ThennikolayevetsI decided that from - for absence of the contract to pay for services - the lawful bases aren't present. When by April, 2008 the debt already accumulated of 800 hryvnias, "Areanda" gave onPolishchukin court of the Central district. Trial lasted nine months - till December, 2008.Business ended with that "Areanda" withdrew the claim, and gave new to the same court and on the same subject.

- I treat events so, - speaksAlexander Polishchuk. - Case was considered not by the simple judge, and the deputy head of court - - жаCherenkova. I think that ZhEK took away the statement because it had no chances to carry the case. Because the judge understood, after all I had thorough arguments. I think that "Areanda" decided to find other judge that it was possible to resolve this issue.

On March 11, 2009 "Areanda's" new process againstbeganPolishchuk. This time the judge - - жаYankova- to the respondent I seemed to the prejudiced.

- It seems to me that the judge at all doesn't hear my arguments, - speaksPolishchuk. - She hears only that representatives of ZhEKA even if they tell full nonsense speak.

The decision on "Areanda's" business againstPolishchukit is yet accepted, the court considers arguments of both parties.

Nadezhda MalyutinaandNikolay Zozulinetsgot acquainted in the building of court of Leninsky district - their processes united in one.

Malyutinaalways regularly I paid for services ZhEKA but when in 2005 a tariff raised, she didn't recognize this increase, and till today continues to pay on tariffs at the level of 2005 is she specifies on all receipts on payment. As of October, 2008 (during trial) ZhKP "South" demanded, thatMalyutinaI paid a debt of 1215,81 hryvnias.

- I don't recognize the claim, because with ZhKP "South"I have nolegal relations, - speaksNadezhda Petrovna. - We have no contract.Besides, I have no calculations for works which ZhEK performed according to tariffs, which at ZhEKA the general, instead of for each certain house.And not all services were provided. So, maintenance practically wasn't carried out - we did it at own expense. Since 2005I addressed to the director of ZhKP "South" Vitaly Pishenin with the offer to sign the contract three times. But to me refused.

Rights of NMalyutina's clothesdefends City society on protection of the rights and interests of consumers (public organization) which members helped it to make the claim and to prepare necessary documents.

After several court sessionsMalyutinaI lost the suit.On February 12, 2009 judgeGalina BogatyrchukI passed the decision, on whichMalyutinahas to pay a debt of 1700 hryvnias (such sum collected as of December 1, 2009) plus 51 hryvnias of the state duty and 30 hryvnias for information support.

Nikolay Zozulinets, respectively, too I lost the suit and I reconciled to the passed decision.

Malyutinaand her defenders from society on protection of the rights and interests of consumers were revolted with actions of the judge which, in their opinion, initially was prejudiced and ZhEKA supported.

- I saw the court minutes, - speaksMalyutina. - In it words of my son are specified. But it even in court wasn't. And these words didn't sound in general! When I asked that this such, to me answered: "The secretary was mistaken, incorrectly caught a name of the one who spoke".

Nadezhda MalyutinaI made the complaint to actionsGalina Bogatyrchukaddressed to the presiding judge of Leninsky district. What its surprise and indignation when she learned was that the complaint considered … itselfGalina Bogatyrchuk! What was the decision on the complaint - hope, it is clear to all.

Malyutina submitted the appeal.

- I am not sure that the appellate court will pass the decision in my advantage because it will be crash of all system, - she speaks.

We will return to the lost court. Then at meeting the representative of ZhEKA the legal adviserNatalia SemenenkoI explained that ZhEK doesn't sign the contract "from-for insufficient financing-housing and communal services Department don't allocate money for typographical contracts".

Director of ZhKP "South"Vitaly Pisheninto the correspondent "Crime. Is NOT PRESENT" the reason of absence of the contract I formulated on - to another:

- In the standard contract which developed the Cabinet, 25 services which ZhEK has to provide are registered. In Nikolaev at public hearings the decision was made that ZhEK will provide only eight services, and the mayor Vladimir Chaika approved this decision. But nobody developed the contract for eight services. And ZhEK isn't competent to make such contracts are has to become at the level of the central power, that is Cabinet of Ministers.

Adviser to the mayorVictor TitarenkoI confirmed that bodies of the central power have the right to develop similar contracts only.

The matter is that in item 3 of the Art.20 Law of Ukraine (LU) "About zhilishchno - utilities" is told that the performer, that is ZhEK, is obliged "to prepare and sign with the consumer the contract for granting zhilishchno - utilities with definition of responsibility for observance of conditions of its performance according to the standard contract". All hitch in the last phrase - "according to the standard contract". And three times more services are stated in the standard contract, than solved at public hearings in Nikolaev. Besides, the standard contract approved by Cabinet of Ministers, very much "general" also doesn't contain those points which nikolayevets demand. Therefore to make the contract which will correspond to the law, to the solution of public hearings and at the same time requirements of residents, today it is impossible.

One of the former officials who is down on to system zhilishchno - municipal services but which name we can't tell, explained that under the same Law of Ukraine (LU) "About zhilishchno - utilities" the inhabitant, and ZhEK, despite law articles is obliged to sign the contract, "to anybody has to nothing".

In such position zhilishchno - the municipal enterprises put some other laws.

In the letter of the deputy of the mayor, the director of the department of housing and communal servicesVitaly Yavorskyto the head of the constant commission of the City Council of questions zhilishchno - municipal services and improvement of the cityTo Victor Burovof June 27, 2008 this position is accurately traced. Articles of laws which, actually, do people by hostages ЖЭКов are provided in the document. Here summary of this document.

According to the Civil Code (CC) the contract is considered concluded from that moment when the parties came to a consent on all essential points.

Article 639 of this code says that the contract can be made in any form if other requirements aren't defined by the legislation.

According to Art. 205 of group of companies "legal action can be made orally or in writing. The parties have the right to choose a form of legal interaction if another isn't established by the law. Legal action for which the law didn't establish an obligatory written form, is considered perfect if the behavior of the parties certifies their will for approach of the corresponding legal consequences".

According to item 2 of the Art.642 groups of companies, "if the person who received the offer to sign the contract (consumer), for a month action made agrees with the specified terms of the contract (paid a certain sum of money), which testifies to his desire to sign the contract, this action is adoption of the offer if another isn't specified in the offer to sign the contract or isn't established by the law".

In other words, if ZhEK took out your garbage, and you paid this service - the contract is signed.

According to item 1 of Art. 218 of group of companies non-compliance by the parties of conditions of the written contract doesn't do it invalid, except cases if the contract wasn't signed in writing.

"In this case the proof of the conclusion of the contract is the receipt on payment by the consumer of the corresponding services", - is told in the document.

According to Art. 642 of group of companies, the person who accepted the offer, can withdraw the answer about its acceptance, having reported about it to the person who made the proposal to sign the contract, by the time of or at the time of obtaining the answer by it about adoption of the offer.

Thus, the contract between ЖЭКом and residents exists - in an oral form. Residents confirm the consent with the contract that services ZhEKA accept and pay a rent. Moreover, if in the house the roof doesn't flow - means, ZhEK executes terms of the contract.

On the other hand - the law as дышло. Whether will be ablenikolayevets, which bear today judicial burden, to prove the case - while it isn't known. As far as it in general is possible, we learn upon termination of all vessels.Nadezhda MalyutinaI intend to go all the way: if she loses appellate court, the claim of the highest authority plans to file a lawsuit. And so, won't reach yet the European court.

Anyway, it isn't dependent on an outcome of the trials, clearly one - system ЖЭКов became outdated. They were succeeded by private ZhEKI which can be considered as an intermediate link on a way "to a civilization". Difference private ЖЭКов from state is that the first have no opportunity to accumulate debts. If private ZhEK doesn't cope with the duties and has debts, it loses the right to participate in competition on granting zhilishchno - utilities.

Optimum option many, especially those who already passed this difficult way, consider the organizations of co-owners of apartment houses -OSMD. They act by that principle that residents are owners in the house.People gather everything, elect the head of OSMD and define, how many money they will pay for the maintenance of the house and on what this money specifically will go. The head of OSMD organizes process: selects workers who will do repair, to clean etc., signs the contract with the organizations which will take out garbage or to provide other services and, respectively, gets paid for it. It isn't so obligatory that such organization of management of the house will cost dearer, than rent ЖЭКам, and at good management - even is cheaper.Nikolayevtsa which already organized OSMDalso live under own laws, claim thatmore never will return to ЖЭКам, also feel very comfortably. And from those inhabitants who continue to be served at ЖЭКов, it is usually possible to hear criticism in their address, but to organize OSMD to people laziness. Many nikolaveets still believe that the state something has to them. And that the duty to watch their own house lies only on state shoulders.

To believe that the communism still will come, of course, it is possible, but it not absolutely correct reaction to modern living conditions. Today each person of everything has to achieve.

Ekaterina Kolpakova


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