Issuance of an execution order under Art. 410, para. 1, item 1 of the Code of Civil Procedure for the removal of an owner, user or occupant from a building in condominium mode

I. Introduction to the problem

The purpose of this article is to examine the question of whether it is admissible to issue an execution order pursuant to Art. 410, para. 1, item 1 of the Civil Procedure Code¹, and subsequently a writ of execution, for the removal of an owner, user or occupant² from a building in condominium mode due to the presence of one of the grounds under Art. 45 of the Law on Property³. The reason for writing the text is the presence of conflicting opinions both in judicial practice and in legal theory. 

1. The existing legal framework

1.1. According to Art. 45 of the Civil Code the owner per floor or part of a floor can be taken out from the building by decision of the general meeting for a period of up to three years in the following alternatively listed cases:

a) if he uses or allows his premises to be used in a manner which exposes the building to the risk of fire or significant damage, and

b) if systematically violates the regulations or the decisions of the general meeting on the internal order in the building or good manners.

Al. 2 of the said provision clarifies that the General Assembly of the condominium may decide to evict only after the owner is was warned in writing by the manager that he will be removed from the property and if and then a warning no has terminated the infringement. From his side Art. 46, para. 2 of the Civil Code provides an opportunity for the manager or the chairman of the management board of the condominium to request the issuance of an enforcement order by Art. 410, para. 1 of the Code of Civil Procedure, based on the effective decision of the general meeting under Art. 45 of the Civil Code.

1.2. The eviction of a person living in or using an independent object in the condominium has its own regulations and in The Condominium Management Act⁴.

So agreed Art. 11, para. 1, item 10, b. f) from ZEUS The general assembly of the condominium also adopts decisions on removal from the building of owner  in the order of Art. 45 from ZS for a certain period, but not longer than three years, as Art. 17, para. 2, item 2 provides for the adoption of such a decision by a majority of not less than 75 percent of ideal parts from the common parts remaining after deducting the owner's or user's ideal parts (when making such a decision against a resident, the law does not provide for deduction of the owner's ideal parts, assuming that in this case a simple majority is also necessary⁵).

From his side Art. 38 of ZUES provides that when an owner did not fulfill decision of the General Assembly of the condominium within the specified period, the chairman of the management board (the manager) can file application for the issuance of an enforcement order in order of Art. 410, para. 1, item 1 of the Civil Code⁶. It must be attached to the application a copy of the decision of the general assembly. At the same time para. 3 of Art. 38 of ZUES provides for the need for the written request for the issuance of a writ of execution for the removal of owner, user or occupier, to be applied a copy of the warning under Art. 45, para. 2 of ZS.

2. The different opinions regarding the existing legal framework

Despite the existence of an explicit regulation, which provides for the possibility for the management body of the Condominium to request the issuance of an execution order under Art. 410 of the Civil Code for the removal of an owner, is available conflicting case law about the actual existence of such an opportunity.

2.1. According to part of the judicial practice, Art. 38, para. 3 of ZUES appears special legal norm according to Art. 410, para. 1, item 1 of the Code of Civil Procedure, which requires the implementation of additional procedural conditions for the provision of an execution order under Art. 410 of the Civil Code, and subsequently an executive order for the removal of the owner from a condominium building⁷. As an additional argument, it is stated that Art. 46, para. 2 of ZS expressly refers to the procedure under Art. 410, para. 1 CPC, similar to those provided for in art. 210, para. 5 CT, Art. 37 ZAdv., art. 203 Buildings, Art. 107, Art. 154, Art. 184 Energy, Art. 30 ZKAIIP, Art. 61, Art. 89 ZNND, Art. 54 ZSdrNap, art. 54, Art. 79 of the Civil Procedure Code, for which the issuance of an execution order is allowed, regardless of the amount of receivables⁸. In some court decisions, it is specified that the decision of the General Assembly gives rise to a right for the condominium for removal from the building on the basis of Art. 45 of the Civil Code, which by its nature is possessive[9], the protection of which can be implemented both under the general legal procedure with a condemnation claim and with an application for the issuance of an execution order under Art. 410 of the Code of Civil Procedure, and in case of objection - also through a claim under Art. 422 of the Civil Code[10].

Legal theory also supports such an interpretation, assuming that there is an opportunity to exercise subjective rights in an identical procedural order, but on other substantive legal grounds[11].

2.2. According to other legal acts according to Art. 410 of the Code of Civil Procedure, an execution order is issued for a claim for sums of money or for replaceable items and for the delivery of movable property (ownership rights), as there is no procedural order for issuing an execution order for the removal of an inhabitant from a dwelling in a building built in a multi-story building property, such as the provision of art. 38, para. 2 of the Law on Laws and Regulations is p lower rank and cannot extend the scope of the provision of Art. 410 of the Civil Code. They state that the right of the General Assembly of the condominium to remove an owner, user or occupant from the building no falls within the circle of listed in art. 410, para. 1 of the Civil Procedure Code claims.

The thesis that Art. 46, para. 2 of the Civil Code and Art. 38, para. 2 of the EU Law on Law expands the field of application of warrant proceedings, since no is permissible a provision of a law to extend the scope of proceedings regulated in a code[12]. It is accepted that the rule of par. 51 of the Code of Criminal Procedure of the Civil Code contradicts Art. 410 of the Civil Code, indicating the hypotheses to which the warrant proceedings are applicable, and the stated position is argued with automatic substitution by the legislator of the expression "the district court issues a writ of execution in accordance with the Code of Civil Procedure" with: "the district court issues an execution order", imposed after the entry into force of the Code of Civil Procedure", as Art. 46, para. 2 and Art. 38, para. 2 of ZUES no should find application in practice[13]. As an argument, it is also indicated the impossibility of implementing the protection under Art. 422 of the Civil Code[14]. However, many of the cited judicial acts also discuss the issue of entry into force of the decision of the General Assembly of the condominium, as an additional argument for disregarding the submitted application under Art. 410 of the Civil Code.

II. Conclusions

1. On the relationship between Art. 38, para. 3 of the EUES, Art. 46, para. 2 of the Civil Code and Art. 410 of the Civil Code

Are the provisions of Art. 38, para. 3 of the EUES and Art. 46, para. 2 compared to Art. 410 CPC or just the opposite – the last provision is part of a normative act of a higher rank-code and cannot be overcome by the provisions of laws?

In order to answer this question, one should take into account the fact that Art. 38 of the EUES was promulgated by SG No. 6 of 23.01.2009, and is in force from 01.05.2009, as para. 2 and 3 are supplemented by SG No. 57 of 2011, while the Code of Criminal Procedure was promulgated by SG No. 59 of 20.07.2007 d., in force from 03/01/2008 On the other hand, Art. 46, para. 2 of ZS is amended by SG No. 59 of 20.07.2007, namely with pf. 51 of the Civil Code. From here, ZUES appears as newer law, as well peculiar against the Code of Civil Procedure as it governs the relations of a special group of legal entities (According to Art. 1 of ZEUES, the law regulates the public relations related to the management of the common parts of buildings in condominium mode, as well as the rights and obligations of the owners, users and residents of independent objects or parts of them), while the Code of Criminal Procedure proceedings in civil cases between legal entities of any kind. At the same time, it should be specified that the amendment of Art. 46, para. 2 of the Civil Code has been implemented namely with pf. 51 of the Civil Code.

According to its content, Art. 46, para. 2 of the Civil Code and Art. 38, para. 2 of the ZEUES provide means for protection of subjective law, and the reference in them refers only to procedural law row for protection under the Civil Code, but not to its premises. Regarding the statement that the Civil Code is a code and appears higher in the hierarchy of normative acts, it should be clarified that not the name of the normative act, and its content determines its place in the hierarchy of sources of law. In this line of thinking The Civil Code contains a codification of real property law[15], which is why the thesis that the Civil Code is a normative rank of a higher order cannot be shared.

In view of the above, it can be concluded that the will of the legislator was to create an explicit special rule for issuing an execution order in accordance with Art. 410, para. 1, item 1 of the Civil Code, but subject to additional prerequisites provided for in the ZEES and ЗС.

2. Can the procedure for issuing an execution order under Art. 410 of the Civil Code to serve for other claims beyond those defined in the cited provision?

As stated according to some of the court decisions, when making a decision to evict an owner, occupier or occupant from a condominium property, it is possessory right present in favor of the condominium for the removal. According to other court decisions, even if there is such a right, it no get in the subject scope of Art. 410 of the Civil Code, as the Civil Procedure Code and the ZEUS cannot expand the field of application of the specified procedural order.

The answer to the question depends on establishing the legislative approach to the order under Art. 410 of the Code of Civil Procedure as a result of the interpretation of all existing regulations, not only that of the Code of Criminal Procedure. As a result, it can be concluded that there are numerous cases where the legislature has decided to provide applicability of the specified order, with which it is expanded its field of application. Acceptance of the opposite opinion would lead to a serious threat to the security of the legal system, and not only in the sphere of public relations, regulated by the Civil Code and the Law on Legal Affairs. This stems from the fact that the order of Art. 410 CPC is provided in many other cases, namely:

• Regarding the lawyer's claims arising from unpaid fees and expenses (Art. 37 of the ZAdv.)[16];
• On the obligations of users and users of water and users of waste water removal and treatment services and other services under the Water Act[17];
• For the receivables of the public supplier, final suppliers, suppliers of last resort, the operator of the electricity transmission network and the operators of electricity distribution networks for delivered or transmitted electric energy, as well as for the services provided by them under the Energy Act, regardless of their size (Art. 107 from ZE[18]);
• For the obligations of clients - defaulting debtors, and of the association under Art. 151, para. 1 of ZE to the heat transfer enterprise, regardless of their size (Art. 154 of ZE);
• For the receivables of the public supplier and end suppliers of natural gas for the delivered natural gas, regardless of their amount (Art. 184 of ZE);
• For unpaid notary fees owed to the notary, regardless of their amount (Art. 89, Para. 3 of the Civil Code[19]);
• For the sums due for contributions by decision of the General Assembly of the Chamber of the PSI, regardless of their amount (Art. 54 of the PSI[20]);
• For the unpaid fees and expenses owed to the private bailiff, regardless of their amount (Article 79, Paragraph 3 of the Civil Code);
• For the collection of the amount to cover the liability of the employee or worker for the damage caused to the employer by negligence during or on the occasion of the performance of his work duties, regardless of the amount of the claim (art. 210, para. 5 CT[21]);
• For claims arising from unpaid fees under registered contracts, designers may request the issuance of an execution order under Art. 410, para. 1 of the Civil Procedure Code regardless of their size (Art. 30 ZKAIIP, Art. 61);

As a result of the above, it can be concluded that the referral pursuant to Art. 410 of the Civil Code and the expansion of its scope is a common legislative approach with a view to the enforcement of receivables of different nature, including fees, fines, contributions, as in most cases the amount of claims is irrelevant. In view of the systematic interpretation carried out, it should be assumed that the procedure for issuing an execution order under Art. 410 of the Civil Code can be applied with a view to the subsequent enforcement of the condominium's right to evict the owner, occupier or user.

3. Proposals de lege ferenda

As stated, in legal theory the opinion is advocated that the application of the procedure for issuing an execution order under Art. 410 of the Code of Civil Procedure for the removal of an owner, appears unsuccessful with a proposal de lege ferenda for the inclusion of the entered into force decision of the condominium among the acts under Art. 417 of the Civil Code[22]. On the other hand, under the operation of the old Code of Civil Procedure, the decision of the General Assembly to evict an owner from the building was a non-judicial enforcement ground[23], on the basis of which a writ of execution was issued[24].

However, which legislative approach is the most appropriate according to the existing public relations?

3.1. Under the current regulation, the court first should issue an enforcement order, which to be delivered of the debtor and barely after the expiry of the period for submitting an objection to issue a writ of execution. Thus, the debtor could defend himself even before enforcement is initiated against him. This in turn could result in serious damage to the condominium, especially in the presence of circumstances under Art. 45, para. 1, b. a).

3.2. On the other hand, when adding the effective decision under Art. 45 of the Civil Code among the acts under Art. 417 of the Code of Civil Procedure Condominium could obtain a writ of execution and immediately afterwards to file an enforcement case with a bailiff, as the debtor would learn about it in the general case with receiving a summons, after that could object to the order issued. When analyzing the possible applicability of this order, the question whether filing an objection against the order should also be answered would stop enforcement or vice versa? Here it should be taken into account that Art. 45 of the Civil Code established several different grounds for removal from the building in condominium mode, namely:

a) using or allowing the premises to be used in a way that exposes the building to fire hazard or from significant damage;

b) systematic violation of the regulations or the decisions of the general meeting on the internal order in the building or good manners;

Given the different nature of the grounds, it should be assumed that in the event of a decision taken by the General Assembly to withdraw due to the existence of grounds under b. a), and objection filed, same no should stop enforcement. This stems from the nature of the danger to the building – fire or significant damage. The opposite could be accepted if there is a reason under b. b). In these cases a stay of enforcement could be allowed, since the nature of the violation in general would not be related to the presence of such a serious danger to the building itself, and hence the life and health of most of those living in it.

III. Conclusion

On the basis of the above, it should be assumed that there is a normatively objectified legislative will to create an explicit special rule for issuing an execution order in accordance with Art. 410, para. 1, item 1 of the Code of Civil Procedure for the removal of an owner, user or resident from a building in the condominium regime, but with additional prerequisites provided for in the ZUES and ZS. The referral pursuant to Art. 410 of the Civil Code and the expansion of its scope is a common legislative approach with a view to the enforcement of claims of a different nature. When undertaking legislative changes in the existing regulation, the provision of the decision of the General Assembly should be supported among the acts under Art. 417 of the Civil Code, but when creating a differentiated model regarding the suspension of execution upon submission of an objection by the debtor, as in the presence of a decision based on Art. 45, para. 1, b. a) from the Civil Service, the submission of the objection should not lead to the suspension of the execution in view of the nature of the grounds related to danger, of a nature to endanger the entire building, respectively the life and health of a large part of the residents of the building in condominium mode .

Peter TOPUROV, lawyer, assistant at the State and Law Institute at the BAS