Against whom can the water undertakings and network operators file their claims?
Jurisdiction – ESTONIA
Estonian Supreme Court stated in its recent decision (no 3-2-1-83-12) that if a water undertaking or a network operator concludes a contract for providing water services or selling heat with the manager of the apartment association, the undertaker does not always have the right to demand payments directly from the apartment owners. Also, the apartment owners can not assume obligations from the contract concluded with the manager solely on the ground that according to the Public Water Supply and Sewerage Act and the District Heating Act, the undertaker or operator respectively has the obligation to conclude contract for providing water services and selling heat with the apartment owners. In order for the third persons, i.e. apartment owners, to assume obligations from the contract concluded between the undertaker and the manager, the contract must expressly designate that the manager has entered into the contract as the administrator of the object of common ownership (representing the apartment owners).
Therefore, before concluding the contract, one must think through with whom it will be concluded, i.e. does the manager enter into the contract on their own behalf or on behalf of the apartment owners, for this could be important later when filing a claim. The Supreme Court added that under the abovementioned circumstances it is also not possible to base the claim on negotiorum gestio. The undertaker can rely on the latter in case when the apartment owners consume heat or water services without any contract, but when the undertaker does have a contract for providing these services, the contract remains the proper legal basis for claims.