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Ukrainian Supreme Court on proving the fact that the apartment was flooded by neighbors

The legal conclusion of the CCC of the Supreme Court of Ukraine in case No. 686/11256/16-c, published on December 27, 2019, is urgent legal assistance in the form of information for citizens-residents of high-rise buildings who were flooded or if they did it.

Background to the proceedings!

The owner of an apartment flooded by neighbors living above her appealed to the court for the protection of her rights:

  1. a) Requested monetary compensation for the renovation and cleaning of the carpet in the dwelling, as well as reimbursement of the costs of the expert;
  2. b) She asked the court to recover non-pecuniary damage from the defendant, since the bay of the apartment brought her mental suffering, disrupting her usual way of life.

In the course of the proceedings, it turned out that the cause of the “flood” was the hot water flowing out of the faulty heating system in the “flooded” dwelling. The court of first instance satisfied the plaintiff’s claim, the appellate court agreed with this.

“So, the main document confirming the bay and giving rise to the right to demand compensation for material and moral losses in court is an act signed by the head of the service company. It “works” if the owner of the flooded apartment is able to prove, but the harm-doer cannot deny – the amount of damage caused by the “flood”, the guilt of the “flooded” and the causal relationship between these factors.”

The SCU also took the side of the victim!

The outcome of the case in favor of the plaintiff was supported by the following reasons:

  1. There is an act with a visa of the head of the housing office, establishing that the flooding happened due to the leakage of the coolant on the tap of the heating air vent (battery) into the home of the plaintiff’s neighbors from above.
  2. The act is considered by law to be proper and admissible evidence (Articles 58, 59 of the CPCU), and the arguments of the cassation appeal about its invalidity are unfounded.
  3. The act is a primary document and it certifies what happened, therefore, it cannot a priori be based on any documents, as the defendants said.
  4. The responsibility of the owners (tenants) of premises in high-rise buildings is regulated by the Rules for the use of premises in residential buildings (clause 11), approved by the Cabinet of Ministers decree No. 572 and CCU.
  5. The Civil Code of Ukraine states that property obliges the owner to “control” his property right – not to allow its use to the detriment of the rights of others, including by not keeping the property.
  6. Harm to other persons due to non-fulfillment of the obligation “control of property rights” is a pretext for reimbursing material and moral damages to the “victim”.
  7. Refutation of their guilt in the flooding of the apartment with proper and admissible evidence is a procedural obligation of the defendants (the principle of the presumption of guilt of the person who caused the harm applies).
  8. The plaintiff who has proven the amount of damage, the unlawfulness of the actions of the inflictor and the causal link between them, automatically proves his case and has the right to claim the claimed compensation.

26.01.2020

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