128/2001 Coll.
FINDINGS


Constitutional Court on behalf of the Czech Republic

Constitutional Court decided on 13 March 2001 in plenary on the proposal
group of deputies of the Parliament of the Czech Republic to annul § 5, paragraph
. 5, § 9 to 11, including the heading and footnotes. 5) to 7)
§ 13 paragraph. 2, second sentence, including footnote no. 10), § 13 para. 7
words " Committee or authorized by the owner "in the third sentence and sentences fourth and fifth
§ 15 paragraph. 2, the words" (§ 9) "in § 15 para. 4 and paragraph 2 of Article. II Act no.
72 / 1994 Sb., to regulate certain relations to joint ownership
buildings and some ownership of flats and non-residential premises and
amend some laws (Act on ownership), as amended
regulations, and § 11 . 2 point. n) including footnote no. 3)
Act no. 549/1991 Coll., on Court Fees, as amended by Act no. 103/2000 Coll
.,

Follows:

First The proposal to repeal the provisions of Article II, section 2 of the Act no. 72/1994 Coll.
Regulating some joint ownership relationships to buildings and some
ownership of flats and non-residential premises and complement some
law ( of ownership), as amended, with
refuses.

Second The remainder of the proposal is rejected.
Reason


I.

On 16. 10. 2000 the Constitutional Court received a petition from a group of deputies
Chamber of Deputies of the Parliament of the Czech Republic for annulment of certain provisions
Act no. 72/1994 Coll., To regulate certain relations to joint ownership
buildings and some ownership rights to housing and non-residential premises and
amend some laws (Act on ownership of flats
), as amended, (the "ownership Act
flats") and the provisions of law no. 549/1991 Coll., on court fees,
amended (hereinafter "the court fees Act").
The petitioners demand that the Constitutional Court in proceedings under Article. 87 paragraph. 1
point. a) the Constitution of the Czech Republic (hereinafter "Constitution") annulled the law on ownership of flats
provisions of § 9-11 including the title and footnotes
line and § 5 para. 5, § 13 para. 2 the second sentence
including footnotes, § 13 para. 7, § 15 paragraph
. 2 words' Committee or authorized by the owner "at the end of this paragraph
phrase" Unless the committee or authorized by the owner elected to decide on the amount
amounts referred to in paragraph 1 the majority of all unit owners
in the house. Provisions § 11 para. 6 shall apply mutatis mutandis. "in § 15 paragraph
. 4 words "(§ 9)," and in Article II, Section 2. The petitioners also ask
Constitutional Court to the Court Fees Act abolished the provision
§ 11 par. 2 letter n).

From the signature sheet attached deputies, the Constitutional Court found that the
conditions set out in § 64 para. 1 point. b) Act no. 182/1993
Coll., on the Constitutional Court (hereinafter "the Constitutional Court Act"), when the draft
confirmed by the signatures of 60 deputies.

Group of deputies is of the opinion that the contested statutory provisions are in conflict with Article
. 1 of the Constitution, Art. 1, Art. 2. 3, Art. 3, Art. 4 and Art. 11
paragraph. 1 of the Charter of Fundamental Rights and Freedoms (the "Charter") and Art. 1
paragraph. 1 Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms
. The petitioners argue that the emergence of corporate
called "community owners," according to the law on ownership of dwellings
undermining the principle of legal certainty enshrined in Art. 1 of the Constitution because
legal acts such legal persons and the rights and obligations that they
law confers or imposes are with effect from 1 July 2000, when
acquired účinnostizákon no. 103/2000 Coll., amending Act no. 72/1994
Coll., regulating some joint ownership relationships to buildings and
some ownership relationships to flats and non-residential premises and complement
some laws (Act on ownership), as amended
regulations, the Act no. 344/1992 Coll. cadastre of the Czech Republic
(cadastral Act), as amended by Act no. 89/1996 Coll., Act no. 586/1992
Coll., on income taxes, as amended, Act no. 549 / 1991
Coll., on court fees, as amended, Act no.
40/1964 Coll., Civil Code, as amended, azákon no.
357/1992 Coll. inheritance tax, gift tax and real estate transfer
, as amended (hereinafter the "Act no. 103/2000

Coll. ") To replace the legal relationships that have been constituted
exclusively on a contractual basis. Legal relations for the administration, operation and
repair of common parts of the building are still effective under contracts concluded by owners of units
or based on the expression of will
owners of units aimed at establishing a legal entity as a person
private law under the previous legislation. relationships that
to be replaced by legal regulations for whose performance is called
" owners associations "formed the effective date of the new legislation
adjustments in accordance with the law and the petitioners' view, this result
among other manifestation of indirect retroactivity
newly accepted legal standards. in § 9 par. 3 of the Act Dwelling ownership is the emergence
"community" subject to legal facts arising prior to the effectiveness of this provision
(on the delivery of the document bearing the designation contribution to
cadastre and other factors), and petitioners believe
it is a "typical example of false
retroactive effect of the contested provisions of the Act based on the fact that the new legislation captures the past
facts and bind them for future rights and obligations other than
existing legislation".

The petitioners state that in § 9 para. 9 and § 10 paragraph. 3
Act on Ownership of Flats legislator wanted to subject the owners of units
fulfill certain defining features, commanded by law obligations, which
arising from the performance of the community's institutions.
Appellants consider that those provisions of the law designated by the owners
units impose obligations beyond the constitutional framework and content
protection of property rights (the right thing to possess, use, take benefits from it and dispose of it
). The general statutory provisions contained mainly in the Civil Code
owners impose similar obligations.

The petitioners further emphasized that, in their view, puts
legislator in § 9 para. 1 and § 11 para. 4 and 5 of the ownership
flats, as well as in the entire construction community, its scope and method
decision-making undue emphasis on collective page
realization of rights related to the use and management of the house and drives it
located. Resolution of the community, to the adoption of the Act provides various
quorum, namely replace the decision of the owners, respectively.
co-owners of the management of shared responsibility. According to the petitioners, the legislature
contested provisions placing it ahead of the will of the individual owners of units
collective will, a will arising from the law community.
The principle on which the whole structure is based "community
unit owners" as a legal entity arising from the law, according to the petitioners'
suppression of individual property rights
autonomy of the individual and his will in favor of collective
decision and its consequences is in conflict with the constitutional principle of equality of rights owners in
. Another breach of the principle of equality in rights owners fro
petitioners in § 13 para. 7 of the ownership,
which are said to be burdened with the owners of units of guarantee
obligation arising from the law for the obligations of a community that neither of misplace | || own volition.

The petitioners also argue that in § 9 para. 2 of the Act on Ownership of Flats
is a clear delegation of disposal rights
unit to a different entity than the owner, the extent of the delegation is not explicitly defined and
"it is unconstitutional way strengthened the position
community since the contested norm admits that the community
own behalf treated with strange things." The petitioners are of the opinion that
provisions of § 5 para. 5 of the Act on Ownership of Flats
legislature constitutionally impermissible way restricted common co-owners of the house, where
apartments in a house under a lease. The legislature apparently spared
nature and meaning of property rights - in this case the right to dispose of his
things (ie. Co-ownership share) - and constraints that
burdening certain group of co-owners exploited the protection of tenancy rights to
apartment.

II.

Constitutional Court, after finding that the proposal of deputies
not inadmissible under § 66 of the Constitutional Court Act nor are there grounds for stopping
proceedings under § 67 of the Constitutional Court, sent in accordance with § 42
paragraph. 3 and 4 and § 69 par. 1 of the Constitutional Court petition to the

Chamber of Deputies and the Senate of the Parliament of the Czech Republic and also requested a
a written statement from the Ministry for Regional Development.

Assembly of Deputies of the Czech Parliament

The Assembly of Deputies signed by its Chairman prof. Ing.
Vaclav Klaus stated that Act no. 103/2000 Coll. was submitted to the
due to the need to eliminate some shortcomings of the existing legal
regulation, which ultimately prevented wider use of this
specific forms of ownership. Shortcomings consisted of inconsistent
defining forms of management and maintenance of the common parts of the building including
responsibility for its performance. Taken finish, especially the newly introduced so.
"Community owners" as a special type of legal entity
corresponding to its primary purpose, which is the proper exercise and
obligations related to the management, operation and repair of common parts
home. Along with this change, a change
other related provisions of the Flat Ownership Act so that this adjustment has not been
in conflict with the law. The bill was approved by the required majority
lawmakers adopted a law was duly published. Under this state of affairs
not the opinion of a party than to conclude that the legislature
acted in the belief that the law is in accordance with the constitutional and legal order
Czech Republic.

Statement of the Senate of the Czech Republic

The Senate of the Czech Republic expressed its chairman, doc.
JUDr. Petr Pithart, who pointed to the fact that a substantial part
proposal concerns the law on ownership, which recently
regulate the establishment and internal relations "unit owners'
as legal persons eligible to exercise management and even house provisions
in connection with the establishment and functioning of the legal person
impose obligations to owners of units, or otherwise regulate mutual relations
unit owners regarding the fulfillment of the obligations arising from the use
common cause - building. The bill no. 103/2000 Coll.
, after approval by the Chamber of Deputies forwarded on 7. 2. 2000 Senate which
discussed it in the prescribed manner at its 16th meeting on 25. 2. 2000
When discussing the draft was in the Senate, both in committees, which have been
the bill and in the plenary, held extensive debates that
largely pertained to the provisions governing the new Community
unit owners, precisely those provisions whose annulment is || | suggested. The debates have heard many arguments supporting
adoption of new legislation, but also a wide range of views
opponent.

The arguments in favor of the amendment, respectively. in favor of the new regulation
unit owners as a legal entity established by law
based on the belief that the chosen method of legal regulation of social relations
due to the functioning of the house where
co-owners of the common parts of the house are also the owners of apartments
(units) suitable way reflects the needs of the practice, while respecting the principle of collective
respectively. general interest and leads
while also fulfilling Art. 11 Sec. 3 of the Charter. Proponents of the new legislation
also pointed out that the institute mandatory legal persons - caretaker
with obligatory membership of apartment owners in Europe are dominating.
Compared to the existing legislation, under which owners associations
without legal personality also arose ex lege, proponents of the amendment
just saw a change in the enactment of legal personality for the
community.

Against new legislation owners associations
voiced opinions that the state wants to use rulemaking by command
intervene in the free choice of unit owners to come together in order to manage
house as they can within their own legal system chooses. Mandatory
finishing internal ratios community stand by opponents of the amendment also
undemocratically discriminates against owners of smaller units. Although
Senate decided to return the Bill to the Chamber of Deputies, the draft amendments
contested provisions untouched. In the Senate, ultimately deciding
outweighed the votes in favor of the new regulation of owners
units.

The opinion of the Ministry for Regional Development

Ministry for Regional Development stated in its opinion on the draft

Signed by the Minister Ing. Peter LACHNIT that can not agree with the petitioner
because their minds according to the ministry especially
does not take into account the special character of the Institute of homeownership, as provided for in
Czech law. Its essence lies in the fact that
apartment or commercial space (ie. "Unit") is not a separate thing, but it
part of the building. Although the unit may be a separate subject
civil relationships, but only because the law expressly provides.
According to the Ministry ownership units as defined portion of the building
can not be owned, which corresponds to the full legal power over things.
The difference between owning things (real estate) and ownership
unit is reflected mainly in the scope of the authorization of the owner.
Ownership right to drive has meaning and legal relevance only together with
share of co-ownership of the common parts of the building.
Each owner must be aware of their responsibility for the proper maintenance of the house as a
a whole, especially its common parts.

Ministry stressed that the key to a lack of regulation in effect before
amendment made by Act no. 103/2000 Coll. was that the community
unit owners did not have legal personality and the community
not perform legal acts. Could only act all owners
units together or some owners of units if the designated
way outvoted the other owners. Legal action could also be
behalf of owners of units on the basis of power of attorney or administrator
under contract with the owners of units containing the mandate for legal
capacity. However, the law did not address the situation where a person is not intended
manager or administrator appointed will perform their functions. The law did not impose an obligation
owners of units, to conclude an agreement on the administration building,
although the existence thereof calculated and adjusted some of its
essentials. The construction sub-commitment, where each of the unit owners
is obliged and entitled only to the extent that it seems unlike
solidarity from co-owners under the Civil Code, apparently provoked
in practice a number of problems. Suppliers repair of common parts of the building gave
prefer to conclude such a contract in which their suppliers are obliged to pay the price
jointly and severally liable before the treaty from which it originated
obligations to each owner, which would have to be invoiced and || | possibly enforce appropriate part of the price separately.

The ministry was very sensible, and for many owners
unsolvable problem enforcing the obligation to contribute to the costs associated with managing
house and land under § 15 of the Act on the ownership of flats
. If you did not set up a legal entity and manager responsible for managing
house received power of attorney from the unit owners, it was almost impossible to recover from defaulters
contribution to the management of the house. Especially in houses with more
number of unit owners so disproportionately increased with arrears and this situation
recorded only owners defaulting their obligations.
It was therefore necessary to modify the law of unit owners as
legal person who is eligible to exercise rights and assume obligations in
all matters related to the administration building, and also to the community while meeting originated
certain conditions of the law. If
petitioners argue that the Flat Ownership Act exceeds the constitutional framework and content
protection of property rights, if in § 9. 9 and § 10 paragraph. 3
imposes certain owners of units to fulfill the obligations pertaining || | Community authorities, it is necessary according to the Ministry stressed that
security management, operation and repair of common parts of the building are among
basic responsibilities of unit owners who are also
co-owned building's common areas. Community owners
units as a legal entity that has the ability to perform the rights and
bind itself in all matters related to the administration building, can perform this activity
their bodies, their choice. The law must also remember
a situation where it does not, and it is the opinion of the Ministry
fair if this function is entrusted to the owner, whose share
common parts of the house is the largest, respectively. owners of units who
become members of the community the day of its inception.

Ministry also disagrees with the petitioners that the law in
design community places disproportionate emphasis on collective Page

Realization of the rights associated with the use of the house. Flat Ownership Act
had described with respect to the state when the unit, although not a separate
things is nevertheless extent provided by law
separate subject of civil relations, the relationships between the owners (and also co-owners
common parts of the house) in a specific way.
Ministry also disagrees with the proposal to repeal § 13 para. 2
second sentence, § 13 par. 7 and § 15 para. 2 of the Law on ownership and stated that
§ 13 para. 2 affects unit owners defaulting on its
legal obligations and violate the principle of protection of property rights
other unit owners. § 13 para. 7
corresponds with the provisions of § 12 governing the partial responsibility of the unit owners.
Contested provision of § 15 para. 2 according to the ministry on the contrary, strengthens
legal status of owners, because while under the previous wording of the Act
amount of funds as an advance on the costs associated with managing
house and land telling administrator Under the new legislation does so
Community institution or a majority of all owners
units. To § 9 para. 2 of the Act on Ownership of Flats
Ministry notes that the applicants omit that, under that provision
can negotiate a contract for the pledge to drive only with the consent of the owner
units.

Regarding § 5 para. 5 of the ownership, the Ministry
notes that failure to § 5 para. 2 and 3
supplemented by this provision, there would be that it would be possible
circumvent the provisions of § 22 paragraph. 1 and 2, which ensures the former renter of the apartment -
individual - the right to preferential purchase of an apartment in the terms and conditions established by law
. The blocking of § 5 para. 5
is so necessary, otherwise the protection of existing tenants lacked
sense. A proposal to repeal the so directed in favor of persons who intentionally
acquiring residential buildings with tenants in co-ownership with the aim of achieving
eviction of existing tenants without giving them
had to be granted protection in the form of options preferential acquisition of property | || flats occupied by them, which according to the Ministry might lead to a breach of Article.
11 paragraph. 3 of the Charter.

III.

Constitutional Court first, in accordance with § 68 para. 2 of the Constitutional Court
reviewed whether the statute whose petitioners argue its unconstitutionality
provision was adopted and issued within the bounds of constitutionally provided jurisdiction and
constitutionally prescribed manner.

From the statements of Deputies and the Senate and sent to the
parliamentary publications, stenographic reports, resolutions and relevant data
the vote of both chambers is clear that both the law on ownership
apartments, and the law no. 103/2000 Coll. were adopted and issued
constitutionally prescribed manner and within the bounds of constitutionally prescribed jurisdiction, while
the quorums provided for in Article. 39 paragraph. 1 and 2 of the Constitution. The bill,
later promulgated under no. 72/1994 Coll., Submitted to the Chamber of Deputies
Czech government. The law was adopted by the Parliament for its
17th meeting on 24. 3. 1994 (Chamber of Deputies resolution no. 355
Parliamentary Print no. 599 and no. 724), as approved amendments
suggestions when the present 169 deputies to the bill voiced 99 | || MPs were against and 33. the law was signed by chairman of the Chamber of deputies
, the President and the Prime Minister in accordance with Art. 51
Constitution and published in the Collection of laws in part 22, year 1994
( came into effect on 1 May 1994).

Bill in the Official Gazette subsequently promulgated under no. 103/2000 Coll.,
The Chamber of Deputies (Parliamentary Print no. 268), submitted to the Government of the Czech Republic
. For the resolution to the Chamber of Deputies, where he was pronounced
agree with this bill, at its 21st meeting on 28
1, 2000 out of 165 deputies present voted in favor to 90 against, there were 72. Draft
Law was then on 7. 2. 2000 to the Senate, who prescribed manner
discussed at its 16th meeting on 25. 2. 2000
returned it to the Chamber of Deputies, as amended by the adopted amendments (Senate resolution
no. 292). The bill returned by the Senate voted
Chamber of Deputies at its 24th meeting on 4. 4. 2000 maintained the original draft
Act and approved it, as amended, which was passed to the Senate (out of 188 deputies present
134 voted for and 35 against). The law was then

Signed by the Chairman of the Chamber of Deputies, the President and the Prime Minister
and promulgated in the Collection of Laws in part 32, year 2000
(came into effect on 1 July 2000).

Regarding the Act no. 549/1991 Coll., On Court Fees, as amended
, the Constitutional Court did not determine whether it was passed and issued within
bounds of constitutionally provided competence and in a constitutionally prescribed manner | || as with legal regulations issued before the Constitution came into force
Constitutional court is authorized to review only their consistency
with the current constitutional order, but not
constitutionality of the process of their creation and compliance with regulatory powers (see resolution
Constitutional court on 22 April 1999 sp. Nos. Pl. ÚS 5/98, Collection of Decisions
Constitutional court, volume 14, resolution no. 32). The provisions whose abolition
require petitioners were indeed inserted into the Act
just by Act no. 103/2000 Coll.

Constitutional Court, after examining the draft and after considering all the documents collected
concluded that the proposal is not justified.

First, the Constitutional Court must always examine whether the
all the formalities imposed on instituting proceedings.
At this stage it was mainly found that the petitioners seek the annulment of Article
. II section 2 of the Act on Ownership of Flats. Such a provision, however, is not
this law, but is contained in the Act no. 103/2000 Coll., Which
petitioners attacked. As the Constitutional Court is bound by the petition,
was forced to reject this part of its application as manifestly unfounded by
§ 43 paragraph. 2 point. a) the Constitutional Court Act. It should be noted that Article
. II, Section 2. The transitional provision of the Act no. 103/2000 Coll
., Which gives rise to unit owners as a legal entity
effective date of this Act, (ie 1st 7th July 2000), the current
imposing the obligation to hold its first gathering of the community
within three months from the said date. Already at the time of submission
group of deputies and the transitional provision has fulfilled its purpose and does not continue
constitutive effects. Proposal for its abolition would at
things could well change anything, despite the fact that the rights and obligations of
legal relations created before the repeal legislation
remain unaffected and the Constitutional Court and have ex nunc ( §
71 par. 4 Act on the Constitutional court).

For clarity, it is possible to draft a group of deputies to annul individual
statutory provisions be broken down as follows:

First The proposal to repeal the provisions of § 9-11 of the Act on Ownership of Flats
headed "The owners of units."

Second The proposal to repeal § 13 para. 2, second sentence and § 13 para. 7
law on ownership, in § 15 para. 2 of the Act on Ownership of Flats
words "the committee or designated owner" and the last two sentences and
in § 15 paragraph. 4 of the Act on Ownership of Flats words "(§ 9)."

Third The proposal to repeal § 5 para. 5 of the Act on Ownership of Flats.

Fourth The proposal to repeal § 11 par. 2 point. n) of the Act on Court Fees
.

Opposition group of deputies concentrated mainly on valid legal
treatment "unit owners." The petitioners state that
emergence of these legal entities, law called to exercise the rights and obligations
in all matters related to the management, operation and repairs
building's common areas is hampered by the principle of legal certainty, which included
the prohibition on retroactivity of laws.
Signs to the rule of law principle of legal certainty, protection of citizens' trust in the law and the prohibition on retroactivity of laws
undoubtedly belongs, in this case, however
adopting new legislation to violate these fundamental principles there.
Jurisprudence recognizes the so-called. True retroactivity, which includes
cases where legal norm regulates the creation of legal relations and claims
arising from it prior to its effectiveness, and false retroactivity consisting
that legal relationships which arose under the old law, the
governed by that law until the effectiveness of the new law, but then
governed by the new law. The emergence of legal relationship
before the entry into force of the new legislation, legal claims which arise from these relationships
incurred, and the legal actions are governed by the repealed legal norm.
The issue of inadmissibility of retroactivity related to the so-called protection.

Acquired rights (charges quaesita), even though both institutions can not be identified.
Breach of the principle of protection of acquired rights would be the only such change, which would
retroactively worsened the legal status of a legal entity
. The main change made here by Act no. 103/2000 Coll. It is that
unit owners acquired legal personality (in the area
which is part of the scope of its activities) necessary for the proper
job security community, as well as the meaning and purpose of its creation.
Such legislation is undoubtedly available in the democratic legislature,
that the principle of the thing he had to lay down the conditions under which such
legal entity eligible to exercise rights and assume obligations in all
matters related to the administration building arises. According to § 9 par. 3 of the Act on Ownership of Flats
community arises in a house with at least five units
least three of which are owned by three different owners,
day of delivery of the document bearing the designation contribution to
cadastre of real estate, or other instrument by which the competent national authority certifies
ownership to the unit, the last of those owners.
The provision is complemented transitional provisions Art. II section 2 of the Act no. 103/2000 Coll
. regulating the situation of owners who meet the conditions laid down
before the entry into force of this Act (1st 7th July 2000).
If such provision is not adopted, there would be a violation of the principle of equality
between unit owners. Under a retroactive effect could be a new legal
treatment considered only if it constituted the emergence of community
prior to its effectiveness. However, the law clearly states its effectiveness
future and it is therefore in line with the constitutional order of the Czech Republic
.

The petitioners also argue that the contested provisions go beyond the constitutional framework
content and the protection of property rights (§ 9 par. 9, § 10 paragraph. 3
Act on ownership), respectively. that the legislature puts across
design community, its scope and the manner of decision-making
undue emphasis on collective website realization of the rights associated with
use and management of the house (§ 9 par. 1 and § 11 para. 4 and 5 of the
ownership). First, it is necessary to refer to the specific nature
residential property pursuant to the Act on Ownership of Flats. According to §
1. 1 This law regulates the ownership of the building in which
co-owner of the building is also the owner of the apartment or non-residential space
as spatially defined part of the building while
mutual co-owner of the common parts of the building. The legislation in force is thus
built on the concept of co-ownership, where the main subject is the building of a secondary subject
apartment or commercial space, which is not actually
detachable parts of the building, and the ownership of the building and accessing homeownership
or a non-residential area (the so-called design.
dualistic theory of residential property in co-ownership concept).
The special legislation enabled by the Civil Code, which
provides that subject to civil legal relationships may also be
apartments or commercial spaces (§ 118 paragraph. 2), and that in § 125 paragraph. 1 || | refers to the contested Act, is given by the specific nature
apartment or commercial space that can not be effectively independent,
detachable parts of the building. Ownership of the apartment or commercial space
then by definition not necessarily limited to the extent that it is necessary to respect the need
management of the building as a whole.
Rights of individual owners are subject to the same ownership right
other unit owners. The arguments of the petitioners can not be
agree with, because current legislation is headed effort just to respond
mentioned specifics. It is an expression of constitutionally enshrined principle that ownership
committed and must not be misused to the detriment
rights of others or in conflict with legally protected public interests (Art. 11 paragraph. 3
Charter). The legislature was led by seeking fair, balanced solution, supporting
owners who respect the principle cited, and providing
greater legal certainty as well as other interested parties
filling their duties in connection with the management of the house. Adoption of new legislation was enforced
its social urgency after the experience with the previous
finish that simply said enough to hinder situations where
"honest dishonest pay the price." The Constitutional Court, aware of their

Competence, concluded that the contested provisions are not
individually or as a whole, contrary to the provisions of the highest legal force.

Unconstitutional is not the way the decision of owners
units as defined in § 11 of the Act on Ownership of Flats. When the vote is decisive
size of co-owners share units
common areas of the house. If this is an important matter, may
outvoted unit owner may request the court to decide on it (
§ 11 par. 3). Unanimity is required in case of deciding to take
resolution in serious situations, such as a change purpose of use
construction, remodeling or substantial changes concerning the common parts of the house
(§ 11 para. 5). Article 11 paragraph. 1 of the Charter enshrines especially
right to own property and the right to provide the same legal
content and the protection of property rights of owners.
Contested provision the right to own property and is not limiting them
created or inequality in the content and the protection of property rights,
if the legislation in question falls to each co-owner of the house and
owner of the unit as well.

§ 9 para. 2 of the Act on Ownership of Flats is
petitioner challenged because the legislature delegates the right to dispose of the unit
on a body separate from the owner, which is "unconstitutional manner
strengthens the position of communities". The Constitutional Court notes, however, that those
provision allows communities to negotiate an agreement on the pledge to
unit including the respective co-ownership shares in joint
parts of the house to secure claims arising from the loan granted
to the costs associated with building administration only with the consent of the owner
unit. His preliminary agreement with the conclusion of the mortgage contract is
necessary, it is not the provision unconstitutional when freedom will
unit owner is not particularly limited.

§ 13 para. 2 Dwelling ownership law imposes an obligation
unit owner to remove defects and damage that other
units or common areas of the house by himself or those who work with him
unit used. In the group of Deputies is attacked
second sentence of this provision, which is only enhanced warranty obligations specified
remove defects and damage, and the creation of a lien (
day of the decision of the court) other owners of units to unit | || compulsory owner as well as chattels.
Petitioners contested provision in the preamble merely cite without further expounded in what they see
alleged inconsistency with Article. 11 paragraph. 1 and Art. 1 of the Charter, in conjunction with Art. 1
Constitution (obvious clerical mistake is that the provision was ranked as justification
§ 13 para. 3). Significantly petitioners protest against
§ 13 par. 7, which provides that owners of units
liable for the obligations of communities in proportion to the size
co-ownership shares in the common areas of the house. The petitioners
it considered "a flagrant violation of the principle of equality in rights owners,
same principle of legal content and protection of property rights of owners and
principle of legal certainty". The Constitutional Court finds that the contested provisions
any way violate these principles and is contrary
in its consequences adequately strengthen. The basic rights
unit owner is the right unit possess, use and dispose
her. The owner of the unit also has an obligation, however, generally based on the concept of property rights
expressed in Art. 11 Sec. 3 of the Charter diction
that ownership obliges. The owner of the unit involved in the administration building in
range that corresponds to his co-ownership share of the joint
parts of the house, which is his right and duty. Moreover, it is possible for the owners
units agreed otherwise; It is therefore a dispositive
adjustment (§ 13 para. 1 of the Act on ownership).
Obligation of the owners of units as guarantors according to § 13 para. 7 of the Act on Ownership of Flats
depends on the level of ownership interest in the common areas of the house, has
therefore only partial in nature and owner of the unit can not be forced to perform more
without their consent.

The petitioners also argue that § 5 para. 5 of the Act on Ownership of Flats
excludes dwellings, which are used by law lease of
special method of disposition of the co-owners provided for in § 5 para. 2
up 4, Spain argues constitutionally impermissible restriction on the co-owners of the house and

Abuse protection of tenancy rights to the apartment. The purpose of this provision is to protect legitimate
current tenants based on the fact that the apartment must be preferentially offered this
tenants (§ 22 paragraph. 1 and 2 of the
ownership), and the solution adopted is not unconstitutional, though
you can imagine solutions better suited to the overall concept of the law.
The task of the Constitutional Court is not a perfectionist
search for various inaccuracies in the statutory or instruct the legislature to modify
preferable, but to consider whether the contested statute or its individual
provisions are inconsistent with constitutional law or international treaty
under Article. 10 of the Constitution [Art. 87. 1 point. a) of the Constitution].

Against other contested legal provisions already in a group of deputies
justify its proposal specifically does not argue, and since
Constitutional Court, as is apparent from what has been stated
did not find unconstitutional the provisions examined, rejected the proposal to annul these,
in principle only accessory, the provisions [in § 15 para. 2 of the Act on ownership of flats
words "the committee or designated owner" and
last two sentences of this provision in § 15 para. 4 Dwelling ownership law
words "(§ 9)," and § 11 par. 2 point. n) of the Act on Court Fees
].

Chairman of the Constitutional Court:

JUDr. Kessler vr