One of the most common situations in recent years in Ukraine is the submission by utilities of a claim to the court for debt collection for housing and communal services, including a solidarity collection from all participants in the privatization of the apartment referring to the suspension and/or extension of the limitation period based on quarantine restrictions, and now for military time. And unfortunately, citizens, without knowing their rights, without seeking legal support and assistance, agree with all the requirements of municipal organizations and pay money, but they could not do this and save money knowing that such enterprises have already lost their right to recover debt. We tell why this is possible:
indeed, in accordance with the Law of Ukraine dated March 30, 2020 No. 540-ІKh "On Amendments to Certain Legislative Acts of Ukraine Aimed at Providing Additional Social and Economic Guarantees in Connection with the Spread of Coronavirus Disease (COVID-19)" (hereinafter referred to as Law No. 540-IX), Section XII "Final Provisions" of the Code of Civil Procedure of Ukraine is supplemented with paragraph 3 of the following content: "During the quarantine established by the Cabinet of Ministers of Ukraine in order to prevent the spread of coronavirus disease (COVID-19), the terms defined by Articles 49, 83, 84, 170, 178, 179, 180, 181, 185, 210, 222, 253, 275, 284, 325, 354, 357, 360, 371, 390, 393, 395, 398, 407, 424 this Code,as well as other procedural terms for changing the subject or basis of the claim, increase or decrease in the size of claims, submission of evidence, discovery of evidence, provision of evidence, as well as the timing of appeal to the court, submission of feedback and response to feedback, objections, explanations of a third party regarding the claim or withdrawal, leaving the statement of claim without movement, filing an application for review of the absentee decision, return of the statement of claim, filing a counterclaim, applications for cancellation of a court order, consideration of a case, appeal, consideration of an appeal, cassation appeal, consideration of a cassation appeal, filing an application for review of a court decision for newly discovered or exceptional circumstances are extended for the period of such quarantine. "
However, in accordance with the Law of Ukraine dated June 18, 2020 No. 731-ІKh "On Amendments to Certain Legislative Acts of Ukraine Aimed at Providing Additional Social and Economic Guarantees in Connection with the Spread of Coronavirus Disease (COVID-19)" (hereinafter - the Law dated June 18, 2020 No. 731-ІKh), paragraph 3 of Section XII "Final Provisions" of the Code of Civil Procedure of Ukraine is set out as follows: "During the quarantine established by the Cabinet of Ministers of Ukraine in order to prevent the spread of coronavirus disease (COVID-19), the court at the request of the participants in the case and persons who did not participate in the case, if the court decided on their rights, interests and (or) obligations (if they have the right to perform the relevant procedural actions provided for by this Code), renews the procedural terms established by the norms of this Code if it recognizes the reasons for their omission as valid and due to restrictions imposed in connection with the quarantine.
That is, the court, at the request of a person, extends the procedural period established by the court if the impossibility of committing the relevant procedural action within a certain period is due to restrictions imposed in connection with the quarantine.
In accordance with paragraph 2 of Section II "Final and Transitional Provisions" of the said Law, the procedural terms extended in accordance with paragraph 3 of Section XII "Final Provisions" of the Code of Civil Procedure of Ukraine as amended by Law No. 540-IX expire 20 days after the entry into force of this Law. The Law of June 18, 2020 No. 731-ІKh entered into force on July 17, 2020.
Therefore, the above shows that the court may renew the procedural period both before and after the quarantine, if it considers the reasons for such a pass to be valid and due to the restrictions imposed.
The analysis of the practice of the European Court of Human Rights indicates that in the process of making decisions regarding the renewal of the terms for applying to the court or appealing a court decision, the ECHR proceeds from the following: 1) the renewal of the missed term for applying to the court or appealing a court decision is a violation of the principle of legal certainty, therefore in each case such renewal should be sufficiently justified and justified; 2) only the period that is missed for valid reasons, due to circumstances that are insurmountable, independent of the will and behavior of the person, is subject to renewal; 3) assessment of the validity of the reasons for missing the deadline should be carried out individually in each case; 4) any valid reasons for missing the deadline cannot be regarded as an absolute basis for renewing the deadline; 5) it is necessary to take into account the duration of the deadline, as well as the possible consequences of its resumption for other persons.
Most often, utilities file a lawsuit with a simple reference to the quarantine action and the suspension of procedural deadlines, but do not prove exactly the impact of quarantine restrictions on them, what is the reason for not filing a lawsuit on time? The very fact of the existence of certain quarantine restrictions cannot be considered a valid reason for missing the deadline for applying to the court, if such restrictions did not objectively impede the exercise of their right to appeal to the court within the time limits established by the procedural legislation of Ukraine.
Therefore, the fact of the quarantine does not indicate the unconditional renewal of the missed procedural period without the plaintiff bringing negative circumstances that are due to quarantine restrictions and were an obstacle to the party's procedural actions.
And now the most interesting thing is that if the claims are recognized as justified by the court, and the party in the case is declared to have expired, the court is obliged to apply the provisions of Article 267 of the Civil Code of Ukraine to the disputed legal relations and decide on the consequences of such an expiration (that is, either deny the claim in connection with the expiration of the limitation period, or, if there are valid reasons for its omission, protect the violated right, but in any case resolve the dispute with reference to the specified norm). A similar legal position is set forth in the resolution of the Grand Chamber of the Supreme Court of 19.11.2019 in case No. 911/3677/17. At the same time, the Supreme Court draws attention to the fact that part five of Article 267 of the Civil Code of Ukraine provides that if the court finds valid the reasons for the omission of limitation period, the violated right is subject to protection.
Summarizing the above, we note that in the case of obtaining a claim for the recovery of even any debt, it is necessary to verify and calculate the limitation period, because if the Defendant does not declare to the court that the limitation period has been exceeded, the case will be considered on the merits.
Regarding the joint liability of the co-owners of the apartment, in paragraph 139 of the resolution of the Supreme Court of November 14, 2018 in case No. 183/1617/16-ts (proceedings No. 14-208tsc18) concluded that "in a dispute with several proper defendants in which there is no solidarity duty (to which a solidarity claim is not addressed), one of them may declare to the court the application of limitation only in relation to those claims that are addressed to him, and not to other defendants. The latter are not deprived, in particular, of the right to recognize the requirements that the plaintiff imposes on them, or to declare the application to these claims of limitation. " That is, with a joint duty, any of the defendants may declare the application of limitation.
