The Single-member Court of First Instance of Thessaloniki, in a case handled by our office, with the No. 14358/2022 Decision of, accepted the Law of our principal, with which they applied amount compensation 92,592 euros due to the exclusive use of a common thing based on the society orders.
In particular, the defendant made exclusive use of properties in which both he and the plaintiff held a perfect interest without paying to our principal the proportionate share of the benefit he derived from the exclusive use of the suit properties.
Here is an excerpt from the decision:
DECISION 14358/2022
(Lawsuit filing report number: 9106/7546/29.06.2020)
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI
REGULAR PROCEDURE
COMPILED by the Judge, ……………………………., Court of First Instance, who was appointed by the President of the Three-Member Board of Directors of the Court of First Instance and by the Secretary, ………………………………… ….
SIT in public in his audience on October 4, 2021, to try the case between:
OF THE PLAINTIFF: ………………………………… of ………………….., resident of Thessaloniki (street ……………..no…..), with VAT number ………… ………………, who appeared in the audience through the Attorney's attorney, Thomas Kalokiris (A.M. DSTH: 11982), resident of Thessaloniki, (Polytechneiou street no. 21), who submitted written proposals legally and within the deadline, pursuant to the authorization from 29.10.2020 to provide a power of attorney, with a certification of the original signature of the plaintiff by him as the above power of attorney, according to articles 96 par. 1 and 237 par. 1 sec. 2 of the Civil Code.
OF THE DEFENDANTS: 1)………………………………………….. of ……………………, resident of Thessaloniki (street………………. no. …..) with VAT number …………………………., who appeared at the hearing, through the proxy of the Lawyer, …………………(A.M. DSTH ……..), resident of Thessaloniki (street … …… no……), who submitted written proposals, by virtue of the 04.12.2020 judicial power of attorney to grant a power of attorney, with a certification on this of the original signature of the first defendant by the Lawyer, ………………………. (A.M. D.S.TH.: ……………..), according to articles 96 par. 1 and 237 par. 1 sec. b of the Civil Code and 2) of the general partnership with the name <<... ………………..>>based in …… Thessaloniki (street …………………… no. ……), with VAT number …………………….., as legally represented, the which was presented at the hearing, through the attorney-at-law, ………………………………………..(A.M.D.S.TH:…….) resident of Thessaloniki) street ……… …………………. No. …..), who submitted written proposals, by virtue of the judicial power of attorney from 04.12.2020 for the granting of power of attorney of ………………., general partner, administrator and legal representative of the second defendant with a certification of his original signature by the Lawyer, …………………(A.M.D.S.TH.:…..), in conjunction with the private agreement from 09.09.2020 amending and codifying the articles of association of a general partnership and converting it into a limited partnership which was registered in GE.M.H. on 24.09.2020, according to articles 96 par.1. and 237 par.1. ed 2nd KPolD.
[….] During the discussion of the case, the parties appeared, as stated above, and asked to accept what is stated in the written motions they filed
AFTER STUDYING THE LITIGATION
CONSIDERED ACCORDING TO THE LAW
[….] III. From the combination of the provisions of the articles 785, 786, 787, 792 par. 2, 961, 962 and 1113 of the Civil Code it follows that, in case of exclusive use of the common thing by one of the co-owners, the others are entitled, and if they did not present a claim of confusion, to demand from the one who made exclusive use of the co-ownership, a share of the share proportional to the percentage of their right benefit (fruits and general benefits) that he obtained or saved and which consists in the value of the excess of his ideal portion of use to the public (see AP 4/2022, Law, AP 1242/2021, www.areiospagos.gr, AP 852 /2019, Law, AP 1121/2017, www.areiospagos.gr, AP 2191/2007, Law). The relevant claim arises only from the fact of the exclusive use of the common thing by one of the co-owners, but it is not excluded that his responsibility as a bad-faith lawyer according to article 1098 of the Civil Code or his tortious liability according to articles 914 or 1099 of the Civil Code may arise at the same time , if he unlawfully and culpably prevented the sharing of the common thing by the other commoners (see AP 1199/2021, wvvw.areiospagos.gr, AP 758/2021, www.areiospagos.gr, AP 852/2019, Law, AP 362/2010, NoB 2010, p. 2255) or much more if he dismissed them from public opinion (see AP 1199/2021, www.areiospagos.gr, AP 758/2021, www.areiospagos.gr, AP 852/2019, Law, AP 1121/2017, AP 767/2014, Law).
In particular, in the case of urban property, this benefit consists in the rental value of the portion of the non-use commons at the time of exclusive use, which does not constitute rent, since there is no lease relationship, but payable, as compensation, according to the above provisions, benefit (see AP 852/2019, Law AP 802/2017, Law, AP 187/2015, Law). For the rest, the way in which the commoner used the common thing exclusively on his own account is in principle indifferent and he may have leased it or lent it to another or used it himself in any way, that is, even keeping it idle or in the case of immovable property by keeping it closed and unexploited, since in this way he excludes in practice the confusion of the other members and he himself has the opportunity at any time to exploit it according to his judgment and interest (see AP 852/2019, Law, AP 276/2016, www.areiospagos.gr, AP 767/2014, Law). This claim exists against the commoner who made exclusive use of the common either directly or through a third person and in any way (AP 1181/1974, NoB 23, p. 723, EfAth 3908/1999, HellDni 1999, p. 1610 , Legislative Decree 789/2011,
Law, Patent Law 265/2020, Law). Besides, according to article 786 of the Civil Code, only the commoners have a proportional share of the fruits of the common object, but also of the benefits, according to its expansive interpretation, in the sense of article 962 of the Civil Code and therefore, only they can sue and be sued for the benefits and not any third parties associated with them (EfAth 8690/2000, Law). Therefore, in the relevant action for damages, as well as in the decision of the court of the substance that will be issued, it is sufficient, for the completeness and certainty of it, to mention the common property, the share of the plaintiff in it, that the defendant did against the disputed time exclusive use of the common property and also, during the disputed time, the benefit of the defendant commoner from the exclusive use of the common property, consisting of its value, which in the case of urban property is the same as the rental value of the share of the commoner not in use, of which, therefore, the reference is sufficient (see AP 1199/2021, www.areiospagos.gr, AP 758/2021, www.areiospagos.gr, AP 852/2019, Law, AP 187/2015, Law, AP564/2012, NoB 2012, p. 1722AP 362/2010, NoB 2010, p. 2255, AP 1761/2008, Law). Another element is not required to be mentioned in the action, and in particular another legal relationship, based on which the defendant carrier makes use of the common thing and according to the share of the plaintiff, but it is up to the defendant to project an assertion (objection), that he owns the common thing during in addition to the share, the percentage based on a certain legal relationship and that, consequently, he is not obliged to pay the compensation claimed in the lawsuit (see AP 852/2019, Law, AP 564/2012, NoB 2012, p. 1722, AP 1480/2000 , Greece 2001, p.670). Also, it is not required to mention in the relevant lawsuit, comparative data for finding the rental value of the joint property,
since the said value will be derived from the receipts (see EfAth 506/2022, Law, EfLam 5/2021, Law). Based on the above-mentioned special provisions on society, the exercise of the claim for the performance of the benefit, is a more special form of performance of the enrichment, which, without a legal reason, came to the partner, who made the exclusive use at the expense of the property of the partner that did not made use of. That is why the search for the above benefit cannot be made in accordance with the general provision of article 904 of the Civil Code, since the two claims are subject to the same conditions and lead to the same result, i.e. the return of enrichment to the defendant, where he made exclusive use (EfAth 506/2022, Law, where and further references, EfLam 5/2021, Law). The above-mentioned claims, which have the generative cause of the specific right society against ideal parties, are introduced for adjudication before the court competent in terms of content and place according to the general provisions (KPolD 22es), according to the regular procedure (See EfAth 506/2022 , Law).In. With his current lawsuit, the plaintiff alleges that [...].
V. [….] Further, the adjudicated action as to the former defendant is sufficiently defined and legal, based on the provisions of of articles 346, 785, 786, 787, 792 par. 2, 962, 1113 of the Civil Code, 176, 191 par. 2 of the Civil Code, since contains all the facts required for its foundation, insofar as concerns the plaintiff's claim for the benefits attributable to his share and, specifically, since they refer to it: a} the common properties, b} the above share the plaintiff, c} that the first defendant transport did, according to disputed time, exclusive use of the one mentioned above under element A basement store with a warehouse directly by himself and through the second defendant general partnership of the basement described above under item B store directly herself, d} the benefit of the defendant at the time in dispute public from the exclusive use the common property and the corresponding share of the plaintiff on this benefit, without rendering the action indefinite because of it non-reference to it, comparative data of other properties in terms of determination of the rental value of the real estate in question […..]
Therefore, the action under consideration must be examined further on its merits, as to first defendant, per party was deemed admissible and legal, taken into account that, on the one hand, the required fee was paid for the object of her objection court seal with the legal surcharges in favor of third parties (see the no. …………………………..parabola in combination with the transaction code ……………………), while for the admissibility of the discussion the plaintiff presented it from 29.10.2020 written information on the possibility of resolving the dispute with mediation, according to Article 3 of Law 4640/2019 (see related Law 7012021, Law, Yiannopoulos, Mediation and Civil Litigation, 2020, p. 208), while it does not fall under at the mandatory initial mediation session, after the action is adjudicated filed on 29.06.2020 and the entry into force of articles 6 and 7 of Law 4640/2019 retroactively postponed for 1.7.2020, according to no. 74 par. 14 of n. 4690/2020.
VI. […..] As cm therefore, the litigious suit must also be accepted as substantially valid, in part it was decided as to the first of the defendants admissible and legal and to oblige him to pay the plaintiff the overall amount of ninety two thousand five hundred ninety two (92,592) euros with the statutory interest from the day following the service of the lawsuit and until full payment. Finally, in favor of the second of defendants will not be awarded court costs, since these were not presented legally and therefore did not admissibly submit a request for a judicial award costs, while the rest of the plaintiff's legal costs are borne by the former defeated defendant, but will be imposed reduced, as specifically defined in dispositive, because the action was partially accepted (article 178 par. I of the Civil Code).
FOR THOSE REASONS
HE JUDGES in the absence of the defendants.
DEFINES the default judgment fee for each defendant in the amount of two hundred (200) euros.
REJECTED the lawsuit as to the second of the defendants. REJECTED what was judged to be objectionable in the rationale.
ACCEPTED in part the action as to the first defendant.
MUST the first defendant to pay the plaintiff the total sum of ninety two thousand five hundred ninety two (92,592) euros with the legal interest from the service of the action until full payment.
IMPOSE against the first defendant part of the court costs of the plaintiff's sum three thousand (3,000) euros.
ADJUDGED and decided on November 16, 2022.
Thomas Steph. Summer
MDE lawyer
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