13 July 2001 № D-125/2001
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges G.A. Vorobei, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, Shuklin V.Z., having examined on the basis of Article 40, part one of Article 116 of the Constitution of the Republic of Belarus complaint concerning the constitutionality of the effective procedure of drawing up the right of ownership to the flat in the house of a housing and building co-operative, found the following.
According to Article 102 of the Housing Code of the Republic of Belarus citizens shall have the right of ownership to living accommodation on the grounds of: construction of a dwelling house, part of a dwelling house, flat; privatization of an occupied living accommodation of state housing stock; inheritance of a living accommodation; drawing up the right of ownership to a living accommodation by a member of the organization of citizens having built their own house; transfer them of a dwelling house, flat into ownership instead of torn down house due to withdrawal of a landing plot for the state needs; transfer them of a dwelling house into ownership instead of the lost one due to capitalized repairs or rebuilding a dwelling house; making of civil legal transactions; under other grounds specified by the legislative acts of the Republic of Belarus.
The right of ownership of citizens and legal entities of non-government forms of ownership to a living accommodation shall be confirmed by the law establishing document (relevant agreement, registration certificate, certificate on the right to inheritance etc.). Point 4 of Article 219 of the Civil Code of the Republic of Belarus envisages that members of housing, housing and building, country-cottage, garage or other consumer's co-operative, other persons who have the right to shares accumulation, who have made in full their shares for the flat, cottage, garage, other premises granted for those persons by a co-operative for further use, shall acquire the right of ownership to the specified property form the moment of drawing up that right under the established procedure.
Article 103 of the Housing Code of the Republic of Belarus stipulates that a member of a housing and building, housing co-operative who has made in full his shares for the flat granted for him for further use, shall acquire the right of ownership to the flat from the moment of drawing up that right under the established by the legislation of the Republic Belarus procedure. Members of family of a member of a housing and building, housing co-operative who, by paying shares for the flat, have put their housing quota or monetary funds with the object of creating common property, shall have the right, while drawing up the flat into their property, to claim recognition of their property right to a part in that flat or to the relevant money compensation. Analysis of the specified norms shall signify that the procedure of drawing up the right of ownership to the flat in the house of a housing and building co-operative should be determined more clear by the legislation.
Explanation, adopted of 24 September 1990 by the Ministry of Housing and Communal Services and by the Ministry of Justice of the Republic of Belarus, on the procedure of drawing up the right of ownership to the flat in the house of a housing and building co-operative (hereafter - Explanation) shall specify that for drawing up of the right of ownership to the flat a member of a Housing and Building Co-operative, who has made in full his share, should submit an application to the board of a housing and building co-operative which is the owner of the dwelling house. The application shall be enclosed with the consent of all adult members of the family, including those temporarily absent but who shall preserve the right to housing floorspace.
The Constitutional Court emphasises that the given Explanation has been given due to entering into legal force since 1 July 1990 the Law of the USSR "On ownership of the USSR". In spite of the fact that in the Republic of Belarus since 1990 the legislation regulating the right of ownership has been essentially changed, there have been adopted new Civil Code, Housing Code, in practice by drawing up the right of ownership to the flat in the house of a Housing and Building Co-operative the bodies which carry out registration of the right of ownership shall be guided by the Explanation in question. However, that approach shall make it difficult to draw up the right of ownership to the flat in the house of a Housing and Building Co-operative, if not all adult members of a member of a Housing and Building Co-operative, including those who have taken no part in creation of common property, give their consent to draw up the right of ownership.
Having studied the given problem, the Constitutional Court also underlines that the legislation should determine the procedure of drawing up of the right to ownership so as the persons who, by paying shares for the flat, have put their housing quota or money funds in order to create common property, may realize their right to draw up the right of ownership to the part of that flat or to relevant money compensation.
In fulfilment of resolution of the Council of Ministers of the Republic of Belarus of 3 September 1999 No. 1372 "On procedure of State registration of housing stock" the order of the Ministry of Housing and Communal Services of the Republic of Belarus, the Ministry of Finance of the Republic of Belarus and the Ministry of Statistics and Analysis of the Republic of Belarus of 3 December 1999 No. 176/119/379/262 has approved Instructions on the procedure of State registration of housing stock in the Republic of Belarus which shall contain general rules for drawing up the right of ownership to living accommodations.
However, that Instructions contain no issues of drawing up the right of ownership to the flats in the house of a Housing and Building Co-operative.
On the basis of the abovestated and guided by Article 40, part one of Article 116 of the Constitution, Articles 7, 11, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To propose the Ministry of Housing and Communal Services of the Republic of Belarus as well as other competent State bodies to determine the procedure of drawing up the right of ownership to the flat in the house of a Housing and Building Co-operative according to the present Decision and to the effective legislation.
2. The present Decision shall come into legal force from the date of its adoption.
3. To publish the present Decision in accordance with effective legislation.
Presiding Officer —
Chairman of the
of the