Requirement to provide information to RSO Heat Supply. Direct contracts “Owner - RSO” in simple and understandable language

What may be the grounds for a resource supplying organization to terminate contracts for the supply of communal resources (heat supply, cold and hot water supply) concluded between the resource supplying organization and the management company, in court, as well as in the event that the management organization does not have a license (the contract for the supply of communal resources provides for the right resource supplying organization to refuse the contract if there is debt incurred since 2016)?
After termination of the contract, does the resource supplying organization have the right to enter into contracts directly with homeowners?

Having considered the issue, we came to the following conclusion:
1. In the above situation, the resource supplying organization has the right to terminate the contract due to debt unilaterally by notifying the management organization.
The issue of paying utility bills directly to the resource supplying organization can only be resolved at a general meeting of premises owners.
2. The resource supply agreement concluded by the management organization with the resource supply organization, in the event of cancellation of the license to carry out entrepreneurial activities for the management of apartment buildings, may be terminated simultaneously with the termination of the building management agreement.

Rationale for the conclusion:
1. In accordance with the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation is not allowed, except for cases provided for by the Civil Code of the Russian Federation, the law or the terms of an agreement related to entrepreneurial activity. In the case under consideration, the right to terminate the contract unilaterally is enshrined in the contract for the supply of utilities.
On the basis of the Civil Code of the Russian Federation, the right granted by the Civil Code of the Russian Federation, other laws, other legal acts or an agreement to unilaterally refuse the agreement (execution of the agreement) (Civil Code of the Russian Federation) can be exercised by the authorized party by notifying the other party of the refusal of the agreement (execution of the agreement). The contract is terminated upon receipt of this notification, unless otherwise provided by the Civil Code of the Russian Federation, other laws, other legal acts or the contract. In case of unilateral refusal of the contract (execution of the contract) in whole or in part, if such refusal is allowed, the contract is considered terminated or modified.
According to paragraphs. "a" clause 30 of the Rules mandatory for concluding contracts for the supply of utility resources, approved by the Government of the Russian Federation dated February 14, 2012 N 124 "On the rules mandatory for concluding contracts for supplying utility resources", the resource supply agreement provides for the right for the resource supplying organization to unilaterally refuse resource supply agreement with the contractor regarding the supply of utility resources for the purpose of providing utility services in residential and non-residential premises of an apartment building if the contractor has a debt recognized by him under the act of reconciliation of calculations or confirmed by a court decision to the resource supplying organization for the supplied utility resource in an amount exceeding the cost of the corresponding utility resource for 3 billing periods (billing months). This condition must ensure compliance with the rights and legitimate interests of consumers who conscientiously fulfill their obligations to pay for the relevant type of utility service, including by providing them with this type of utility service by a resource supplying organization up to the conclusion of a resource supply agreement with another contractor or directly with consumers, as well as by notifying consumers that the contractor has such debt and the possibility of the owners of premises in an apartment building choosing a different method of managing the apartment building, another management organization and concluding a resource supply agreement directly with the resource supplying organization in the case of choosing a direct method of managing the owners of premises in an apartment building.
Please note that until June 30, 2016, the provisions of paragraphs. "a" clause 30 of the Rules on the possibility of the parties to provide in the contract for the rights of the resource supplying organization to unilateral refusal were of a dispositive nature. Government of the Russian Federation dated June 29, 2016 N 603, this norm was replaced by a mandatory one, obliging the parties to include a condition of unilateral refusal in the contract. In this regard, in the opinion of the Ministry of Construction of Russia, set out in letter dated December 30, 2016 N 45097-АЧ/04, from the moment the changes to paragraph 30 of the Rules come into force, resource supply organizations have the right to unilaterally refuse to fulfill a resource supply agreement with a management organization or partnership or a cooperative if there are grounds provided for in the specified paragraph, regardless of whether the concluded resource supply agreement provides for the right of the resource supplying organization to such a unilateral refusal. The courts adhere to a similar position (see, for example, the Fifth Arbitration Court of Appeal dated September 28, 2016 N 05AP-6845/16).
Let us remind you that, by virtue of the Housing Code of the Russian Federation, when an apartment building is managed by a management organization, it is responsible to the owners of the premises in the apartment building for the provision of all services and (or) performance of work that ensure the proper maintenance of the common property in this building. In accordance with clause 2 of the Rules, the management organization is the executor under the agreement concluded with the resource supplying organization.
Thus, taking into account that in the situation under consideration, the contract provides for the right of unilateral refusal, if there is a debt, the resource supplying organization has the right to terminate the contract unilaterally by notifying the management organization. This is confirmed by judicial practice (see, for example, the Fourteenth Arbitration Court of Appeal dated July 14, 2017 No. 14AP-5139/17). Indirectly, the above is confirmed by the position set out in the Federal Antimonopoly Service of the North-Western District dated November 6, 2013 N F07-8133/13 in case N A42-7501/2012).
Note that according to the Housing Code of the Russian Federation, on the basis of a decision of the general meeting of owners of premises in an apartment building, owners of premises in an apartment building and tenants of residential premises under social tenancy agreements or rental agreements for residential premises of the state or municipal housing stock in a given building can pay for all or some utilities services to resource supplying organizations, and for utility services for the management of municipal solid waste - to the regional operator for the management of municipal solid waste. At the same time, the payment of fees for utility services to resource supplying organizations, the regional operator for the management of solid municipal waste is recognized as the fulfillment by the owners of premises in an apartment building and tenants of residential premises under social tenancy agreements or agreements for the rental of residential premises of the state or municipal housing stock in a given building of their obligations to pay payments for utility services to the management organization, which is responsible to such owners and tenants for the provision of utility services of adequate quality.
Thus, resolving the issue of paying utility bills directly to the resource supplying organization is possible only at a general meeting of premises owners.
2. According to the Housing Code of the Russian Federation, activities for the management of apartment buildings are carried out by management organizations on the basis of a license to carry out entrepreneurial activities for the management of apartment buildings (hereinafter also referred to as a license), issued by the state housing supervision body on the basis of a decision of the licensing commission of a Russian constituent entity.
According to the Housing Code of the Russian Federation, the validity of the specified license is terminated due to its cancellation by a court decision and other grounds specified in No. 99-FZ of May 4, 2011 “On licensing of certain types of activities”, from the date of making the corresponding entries in the register of licenses of a constituent entity of the Russian Federation.
However, termination of the license in the event of its cancellation does not entail the automatic termination of the activities of the management organization in managing an apartment building, since otherwise would lead to a violation of the rights of owners and users of premises in such a building. On the basis of the Housing Code of the Russian Federation, the management organization continues to perform duties for managing an apartment building, providing services and (or) performing work on the maintenance and repair of common property in an apartment building until the day:
1) the emergence of obligations to manage such a house from a management organization selected by a general meeting of owners of premises in an apartment building or selected based on the results of an open competition held by a local government body;
2) the occurrence of obligations under a management agreement for an apartment building concluded by the management organization with a homeowners’ association, housing cooperative or other specialized consumer cooperative;
3) the occurrence of obligations under the agreements specified in the Housing Code of the Russian Federation;
4) state registration of a homeowners’ association, housing cooperative or other specialized consumer cooperative.
The procedure for terminating the activity of managing an apartment building in connection with the exclusion of information about an apartment building from the register of licenses of a constituent entity of the Russian Federation, termination of a license or its cancellation is established in section VI of the Rules for carrying out activities for managing apartment buildings, approved by the Government of the Russian Federation dated May 15, 2013 N 416, in in accordance with clause 26 of which, in the event of cancellation of a license, simultaneously with the termination of the management agreement for an apartment building, the contracts of the management company with organizations providing services and (or) performing work on the maintenance and repair of the common property of the owners of premises in an apartment building, and organizations carrying out major repairs of common property in such a house.
Termination of a management agreement for an apartment building in the event of cancellation of a license also entails the simultaneous termination of contracts between the management company and resource supply organizations (clause 32 of the Rules).
Thus, in the event of cancellation of a license, the obligations of the management organization under the agreement for the management of an apartment building cease from the moment of concluding an agreement for the management of an apartment building with one of the above-mentioned subjects of management of this house (management organization, homeowners' association, etc.) or from the date of state registration of the owners' association housing, housing cooperative or other specialized consumer cooperative created by the owners of an apartment building. Simultaneously with the termination of the house management contract, resource supply contracts concluded by the management company with resource supply organizations are terminated.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Verkhova Nadezhda

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Zolotykh Maxim

In 2018, a law was adopted on concluding direct agreements with the Russian North Ossetia. The activities of resource officers are of particular importance for owners of premises in apartment buildings, since without the services they provide, comfortable living in an apartment building is impossible. Of course, such services are paid for by the owners. In this article we will tell you how a management company can enter into an agreement with a resource supplying organization directly.

Conclusion of direct contracts in 2018 with RSO management companies

RSO is a producer of a particular resource and also plays the role of a supplier.

In the Russian Federation, the activities of most RSOs are controlled by the administration of localities. However, the law does not prohibit private individuals from performing this work.

The majority of the population mistakenly believes that the RSO and the management company are one and the same organization. But, naturally, this is not so. A resource supplying enterprise cannot be a management company. The management company is an intermediary that ensures cooperation between residents of apartment buildings and RSO. And in order to switch to direct contracts with the RSO, the MA must obtain the consent of the home owners. Experts spoke about how to draw up a scenario for a general meeting of premises owners on the issue of switching to direct contracts with RSO in an article in the magazine “Management of MKD”.

Despite the fact that the legislation does not prohibit management organizations from providing resource supply services, however, they, as a rule, refuse to carry out this activity due to the large capital investments required for this.

“After the transition to direct contracts, money will be transferred directly to resource suppliers, and only payments directly for residential premises will go to the accounts of management companies,” explained the head of the Russian Ministry of Construction, Mikhail Men.

The management company is the executor of utility services to residents of MKD and RSO:

1. Firstly, The management company is obliged to provide continuous supply of resources on time.
2. Secondly, Management Company .

So, we see that various contracts are being concluded: for services with residents of apartment buildings, as well as with RSO. Our experts talk about this in more detail in the course.

The same goal is presented when concluding an agreement between the HOA and the RSO. This procedure for such legal relations is regulated, defining the procedure for concluding an agreement with the RSO, the period during which it must be concluded, as well as a number of basic requirements for the content of this document.

Dangerous moment!

Watch a fragment of a free webinar for our subscribers on the topic “Transition to direct contracts between RSO and the consumer.”

The agreement with RSO contains a complete list of the rights and obligations of the parties. The management company, in turn, is engaged in subcontracting the supply of resources, and residents must in a timely manner pay utilities. The course will tell you how to interact with owners to minimize the formation of debts for housing and communal services.

According to the law, when concluding an agreement with RSO, a certain procedure must be followed.

If the management company is the direct executor of utility services, then it is it that is responsible for untimely paid funds to the RSO. And RSO, in turn, does not have the right to collect debt from residents, since no direct agreement has been concluded between them. And the management company reports to the RSO not for each individual consumer, but for the total amount of resources used by the owners of the entire apartment building.

But this organization does not have the right to deprive the entire apartment building of supplies, which is why the management authority collects the debt from specific residents of the building. If the owners of the premises do not repay the arrears, then the management company itself has to pay the accumulated debt at its own expense. Thus, the resulting monetary obligations to the RSO can lead to the bankruptcy of the management company.

The management company has two ways to protect its interests. This:

• writing .

However, the MA can only act within the framework of the agreement concluded between the company and the residents of the apartment building.

One of the largest debtors for payment of housing and communal services is the local government. When the organization managing an apartment building has the right to file a claim directly with the owner, and when - with the user, tenant or tenant of premises in municipal property, you can read the article in the electronic journal “Management of apartment buildings” or.

You can find out about other possibilities for debt collection by answering questions from the on-line service, and it will select the optimal solution for each of your debtors.

And the on-line calculator of the help system “Management of apartment buildings” will help you quickly calculate penalties for debt on housing and communal services.

Adoption of the law on direct settlements with RNO in 2018

On March 23, 2018, the State Duma adopted in the third reading a bill allowing resource supply organizations to enter into direct contracts for the supply of utility resources with end consumers represented by apartment owners. Previously, this opportunity was available only to residents of those houses that are under direct management. With the introduction of these amendments, a similar right appears for those who live in apartment buildings served by a management company. The changes are enshrined in the Housing Code of the Russian Federation in a new article - 157.2.

According to the updated legislation, citizens can enter into agreements bypassing the Criminal Code with regional distribution centers that supply heat and water, ensure the operation of sewage systems and remove solid waste. Innovations apply, among other things, to electricity and gas suppliers. However, there won't be much change here. Management organizations have long been removed from the relationship between consumers of these resources and their suppliers.

Even before the adoption of the law, some townspeople paid for heat and hot water directly to the RSO, without involving the UO in the process. This was done by decision of the general house meeting, which is the main governing body of the house. The amendments contain another important clarification - you can switch to direct payments without such a decision. The transition occurs automatically without signing any documents when the management organization accumulates debt to the resource officer. A delay of 2 months is sufficient for this.

How the law will affect the work of management companies

The adopted law and amendments to the Housing Code do not mean that all management organizations and HOAs or housing cooperatives without exception are being squeezed out of the scheme for supplying utility services to consumers and processing payments received from citizens. The transition to direct payments is possible only if there is such an initiative from RSO. If the resource specialist is not satisfied with the payment discipline of the management company, then he can “switch” cash flows from consumers to himself and remove the intermediary from the scheme.

Another option is the desire of the residents themselves to pay for services directly to the resource supplying organization. The presence of citizens' initiative and the corresponding decision of the general house meeting is not enough here. To conclude a direct contract, the consent of the RSO itself is required. Management organizations do not have the opportunity to initiate the transition to direct contracts. Of course, it can indirectly push consumers or RSOs to do this, but the final decision remains outside the competence of the management company.

According to the law, the organization that provides services and conducts activities in the case of direct management of apartment buildings is responsible to residents for the maintenance of apartment buildings.

The authors of the bill explain their initiative, among other things, by the imperfection of the concept of “utility services provider,” which is the management organization. On the one hand, the MA is responsible to consumers for the quality of the services they receive. Violations often occur due to the fault of the RSO, and the management company is often technically unable to change anything.

On the other hand, the management company is responsible to resource-supplying organizations for paying for the utility resources consumed by the high-rise building, regardless of how timely the end consumers pay for them.

In case of delivery of low-quality services, the management company is forced to recalculate payments for residents, and then coordinate them with resource specialists. The management company must pay funds for the supplied resources in full, regardless of whether the end consumers have debts. Residents' debts and pressure from RSOs who refuse recalculations are the most common reasons for the bankruptcy of management companies.

With the adoption of the new law, management organizations can get rid of the described burden. However, as we discussed above, they do not have the final say in this matter.

How management companies can act in the new realities of legislation to minimize their own risks

The actions of management companies in connection with the adoption of the law on direct contracts depend on their interest in processing payments received from residents. There are two possible scenarios here.

1. The management company is not interested in further accepting payments. If the management company wants to deal exclusively with its main responsibilities for the maintenance and repair of the house, then it can help transfer residents to direct contracts. You can try to convince proactive representatives of apartment owners and resource supply organizations of the usefulness of such castling. If necessary, it is worth assisting the residents of apartment buildings in gathering and holding a general building meeting, at which a decision will be made on direct payment for housing and communal services.

If the method of persuasion does not work, then you can try a more “extreme” option with the artificial accumulation of debt to the RSO. Dissatisfied with the activities of the management company, resource specialists and residents will switch to direct payments, after which the debt is quickly repaid. However, we will not recommend this method, since it is fraught with various troubles for the management organization, and also requires careful calculation and forecasting of the situation.

2. The management company wants to retain the right to accept payments. It is important for many management companies to keep the cash flow from residents under their control. In this case, you need to act in such a way that neither the apartment owners nor the RSO have a reason to remove the management company from this scheme.

The second visible drawback is a possible decrease in the quality of customer service and an increase in their dissatisfaction. For example, large RSOs, when debts arise, will probably not deal with each debtor individually and delve into his situation, as management companies can do. It is always easier for a monopolist to put pressure, that is, to go to court or turn off a resource when the minimum delay that allows such sanctions is reached.

Conclusion of an agreement with RSO upon acceptance of MKD

When a management company accepts an apartment building after concluding an agreement with the RSO, it must comply with certain rules. Let's look at this in more detail:

So that you can easily decide on the method of concluding an agreement with RSO, we have come up with a simple service:

Rule 1. Plan your dates in advance.

When concluding a management agreement for an apartment building, the minutes of the general meeting should indicate a start date acceptable to the organization. Usually, when concluding an agreement with RSO, they do not indicate the end date for fulfilling their obligations, but the time when the company began work.

Thus, the residents of the apartment building elect a new management organization and stipulate in the contract when it should begin to carry out its functions. This time can be agreed upon in advance with the owners of the premises.

At least 2 dates must be compared: the date on which the meeting of MKD residents was held, and the day on which the management company began to fulfill its obligations under the contract.

When concluding an agreement, it is necessary to indicate: “the date of commencement of fulfillment of obligations under this agreement is “01”_______201___.” Later we will talk about why the first day of the month is considered the best option.

Important!

According to clause 19 of Rules No. 124, certain resources cannot be supplied earlier than the period specified in the contract. Thus, the management company is obliged to provide utility services to the residents of the apartment building from the date of commencement of fulfillment of obligations, which was approved by the general meeting of owners of the apartment building.

If you do not calculate in advance the deadline for acceptance, as well as the transfer of control of the MKD, you face potential risks.

• Firstly, you may not have time to submit the required package of documents to the RSO in a timely manner.

And until you submit the documents, the resource supply company will charge payment for the provided utility resources to the previous management company, or there will be no transfers at all. The second case implies that when concluding an agreement with RSO, this organization will additionally transfer funds for the period of time when the fee was not accrued.

According to the decision of the Supreme Court of the Russian Federation, the exclusion of an apartment building from the company's management represents a valid reason for terminating obligations under Article 416 of the Civil Code of the Russian Federation and, therefore, for terminating the energy supply contract. Thus, the untimely conclusion of a RSO agreement with a new facility (MKD) cannot serve as a basis for assigning payment obligations to the person who terminated the legal and actual connection with these apartment buildings.

• The second aspect is the cash gap.

For the billing period, one calendar month is taken to pay for utilities, in accordance with clause 37 of Rules No. 354. Based on this, it is advisable to terminate the contract with the current management company and formalize contractual relations with the new organization at the end of the month. This way you can avoid discrepancies in the calculations of both management companies.

Rule 2. It is necessary to draw up an act of taking readings on the date of commencement of fulfillment of contractual obligations of the new management company.

The act of taking ODPU readings is needed in order to eliminate recalculations. The law does not make this requirement, but in life it is necessary. This act is signed by the transferring and receiving parties. This document indicates the exact amount of utility resources for which payment must be made.

Rule 3. To conclude an agreement with RSO, you must provide the appropriate package of documents in a timely manner.

In order to conclude an agreement with the RSO, the new management company must send a corresponding application, to which should be attached a package of documents provided for in paragraphs 6 and 7 of Rules No. 124. From a legal point of view, an “automatic” replacement of the provider of utility services is unacceptable, but in practice this issue looks somewhat different.

RSO pays special attention to the OSS protocol, in particular to whether the procedure for the provision of utilities and payments that was in effect under the previous management company will be maintained (in accordance with Part 18 of Article 12 of Federal Law 3176-FZ).

• Refusal by a resource supplying organization of a resource supply agreement: rights and rules

Expert opinion

Determining the executor of the CG when the transition process is delayed

Maria Goryacheva,

Head of the Department of Judicial Arbitration and Claims Work of the Legal Department of PJSC GC TNS Energo

For a number of reasons, situations arise when the management company is in no hurry or is not able to timely provide the necessary documents in accordance with Rule No. 124 for concluding an agreement with the RSO. The Ministry of Construction of the Russian Federation supports the right of a resource supplying organization to act as an ICU in the absence of a concluded agreement in the case of management of an apartment building by a management company or a homeowners association.

This position is very controversial, since payment for utilities is carried out depending on the method of managing an apartment building, while concluding an agreement with the RSO does not have such an important role.

In accordance with the position of the Supreme Court, the presence of a company as a management company means the “automatic” emergence of the status of a utility contractor, as a result of which this or that organization has corresponding obligations to provide utility resources to consumers and subsequent payment for utility resources (in accordance with the definition dated 06.07. 2015 No. 310-KG14-8259).

Is concluding an agreement with RSO directly and direct payments the same thing?

As practice shows, many representatives of the housing and communal services sector, including management companies, do not quite understand the difference between a direct contract and direct payment in the system “utility services consumer – utility supplier.”

The definition of “utility service provider” is approved by housing legislation, and responsibility for the quality of services provided and timely payment of charges lies with management companies. If the management authority was elected to manage the apartment building, then it is she who is the executor of the management committee.

Thus, the management company is obliged to provide utility services to the owners of premises in apartment buildings and to acquire for this purpose the corresponding utility resources on the basis of concluding an agreement with the RSO.

However, today some management organizations still use gray contractual and settlement schemes. For example, the management company can agree with the RSO on the direct presentation of utility bills to the residents of the apartment building and at this time independently deal with charges, provision of receipts, claims work and calculation of debts.

Although this organization does not have a legal basis for carrying out this activity, since it is not related to CG.

In addition, many management companies are not at all aimed at concluding an agreement with RSO. Thus, these organizations do not have a legal basis for delivering CG to MKD and accepting payment. Today, management companies are thoroughly checked for officially concluded contracts with RSO.

It is necessary to understand that the management company in this case is at great risk, since, in addition to checking licensing control, it may find itself in a situation where the resource supplying organization, in turn, can demand from the management company the debt not paid by consumers for utility resources. Also, the absence of a concluded agreement between the MA and the RSO may result in even more serious liability.

• Ensuring accounting of energy resources used in the housing and communal services sector

Conclusion of an agreement with RSO- performer

Let us dwell in more detail on those cases when the resource supplying organization acts as a provider of public services, and the management company or homeowners association manages the apartment building:

1. An apartment building, the number of apartments in which exceeds 16, was managed directly, and the ICUs were the corresponding resource supply enterprises.

According to Federal Law No. 255-FZ, owners of apartment buildings, provided that the house consists of more than 16 apartments, do not have the right to manage it directly. Such residents are required to organize an HOA and transfer management of the apartment building to a management organization. However, the owners did not comply with this requirement.

Then, in June 2015, Law No. 176-FZ was adopted, according to which owners of apartment buildings have the right to maintain the procedure for providing utility bills and corresponding calculations in the event that at a general meeting of residents it was decided that it is necessary to change the method of managing an apartment building home or elect UO.

Thus, the owners took advantage of this right, choosing the method of managing the apartment building of the HOA or the management company, and retained a “direct agreement” with the RSO. In other words, having violated federal legislation (by not appointing a management company or a homeowners' association), the owners came to the conclusion that the apartment building is managed by a management company or a homeowners' association, while the management and management unit remained the resource supplying organization.

1. The MA or HOA manages the apartment building without concluding an agreement with the RSO, does not comply with the requirements of the law, refuses to carry out its duties and does not charge fees for the management.

After Law 176-FZ was adopted, RSOs recognized themselves as providers of public services, because management companies and homeowners' associations did not take on this role. As in the above situation, violation of the law became the basis for the fact that the management of the apartment building is carried out by the management company or the HOA, and the RSO is the executor of the management company.

1. A residential building, the number of apartments in which there were at least 16, was managed directly, and after the law that came into force on June 30, 2015, the owners of the premises chose at a general meeting the method of managing the management company or HOA, and it was also decided to maintain the previously existing procedure for providing utilities services and related payments.

In this case, the management of the house is carried out by the management company or HOA, and the provider of utilities is the RSO.

1. The management company or HOA has a certain debt to the resource supply organization, the amount of which exceeds the cost of utility resources for 3 calendar months. This arrears were recognized either by the management company (HOA) itself, or by a court decision.

RSO, guided by clause 30 of Rule 124, terminated the contract with the debtor unilaterally and formalized contractual relations directly with consumers of the utilities.

Does the management company’s license affect the conclusion of an agreement with RSO

According to the letter of the Ministry of Construction of the Russian Federation No. 35750-OL/04 dated November 5, 2015, management companies are required to enter into an agreement with the RSO, this fact is subject to mandatory licensing control (Part 1 of Article 193 of the Housing Code of the Russian Federation).

In accordance with Decree of the Government of Russia No. 146 of May 15, 2013, management of apartment buildings is carried out by concluding an agreement with the RSO for energy supply, heat supply, hot and cold water supply, sewerage and gas supply to provide utility services to residents of apartment buildings. Thus, concluding an agreement with RSO is a licensing requirement subject to licensing control.

Agreements between the owners of apartments in the MKD and RSO, which were concluded between the owners of premises in the MKD and RSO before June 29, 2015, are valid until the end of the contract or terminate at the request of one of the parties. This is the only case where the absence of a formal agreement between the management company and the resource supply organization is not a violation of licensing requirements.

According to Letter of the Ministry of Construction No. 35750-OL/04 UK are required to comply with other requirements approved by the Government of the Russian Federation. Licensing requirements, in particular, are presented:

• compliance with the rules provided for in Part 2.3 of Article 161 of the RF Housing Code;
• fulfillment of undertaken obligations under a management agreement (Part 2, Article 162 of the RF Housing Code);
• compliance with requirements provided for in Part 1 of Article 193 of the RF Housing Code.

When concluding a management agreement, the management company, at the request of apartment owners in an apartment building, is obliged to perform a certain set of works and provide services as part of the management of an apartment building, for example, to ensure proper maintenance and repair of the apartment building in the building, to provide utilities and to perform other operations stipulated by the scope of the agreement.

According to the Rules for the implementation of activities for the management of apartment buildings, house management is ensured by providing CG to the owners of apartments in apartment buildings on the basis of concluding an agreement with the RSO. Thus, we see that the conclusion of an agreement between the management company and the RSO represents a licensing requirement and is subject to mandatory licensing control.

• On the responsibility of management organizations for violation of licensing requirements

What threatens the management company if agreements are not concluded with RSO

In the event that licensing requirements are not met and violated, the management company falls under administrative liability, in accordance with which the organization pays a fine, or the head of the management company is disqualified.

According to Part 1 of Article 7.23.3 of the Code of Administrative Offenses of the Russian Federation, for non-compliance and violation of the Criminal Code and IP rules for carrying out activities for managing apartment buildings, these organizations face an administrative fine:

• for individuals– in the amount of 50 to 100 thousand rubles. or disqualification for a period of 3 years;
• for legal entities– in the amount of 150 to 250 thousand rubles.

According to Part 2 of Article 7.23.3, failure to fulfill the obligations stipulated by the rules for carrying out activities for managing apartment buildings at the moment when the license is terminated or cancelled, faces an administrative fine:

• for individuals– in the amount of 100 to 200 thousand rubles. or disqualification for up to three years;
• for individual entrepreneur– in the amount of 150 to 500 thousand rubles or disqualification for up to 3 years;
• for legal entities– in the amount of 150 to 500 thousand rubles.

According to Part 2 of Article 14.1.3, in the case where business activities related to the management of apartment buildings are carried out in violation of licensing requirements, an administrative fine is imposed:

• for individuals– in the amount of 50 to 100 thousand rubles. or disqualification for up to 3 years;
• for individual entrepreneurs– in the amount of 250 to 300 thousand rubles. or disqualification for up to 3 years;
• for legal entities– in the amount of 250 to 300 thousand rubles.

According to Part 2.4 of Article 19.5 of the Code of Administrative Offenses of the Russian Federation, in case of non-fulfillment or improper fulfillment of obligations within the specified period of the order of the State Housing Authority to eliminate violations of a particular licensing requirement, an administrative fine will be imposed:

• for individuals– in the amount of 12 to 20 thousand rubles;
• for legal entities– from 300 to 500 thousand rubles.

For committing an administrative offense under Art. 7.23.3 and 14.1.3 of the Administrative Code of the Russian Federation, individual entrepreneurs who carry out their business activities without having the status of a legal entity bear administrative responsibility precisely as legal entities.

Thus, the conclusion of a direct agreement between the owners of apartments in MKD and RSO does not cancel the obligation of management organizations to formalize contractual relations with resource supplying enterprises.

Conclusion of an agreement with RSO using the direct method of management

Direct management of apartment buildings means organized actions of the owners of residential premises or external parties involved, which are aimed at achieving comfortable conditions for residents. Direct management of apartment building owners, just like other methods of managing an apartment building, is regulated by Article 161 of the Housing Code of the Russian Federation.

According to Article 164 of the Housing Code of the Russian Federation, the direct form of management of apartment buildings implies the fact that absolutely all owners must enter into an agreement for the supply of utility resources such as water supply, gas supply, heating and electricity supply. In the case where the apartment owners have issued a power of attorney for one person, he, in turn, enters into such agreements on behalf of each owner.

To conclude a direct agreement with RSO you need:

• a copy of the document on the decision of the general meeting of owners of residential premises on the transition to direct management of apartment buildings;
• a copy of a copy of the document on the decision of the general meeting of apartment owners regarding the selection of the chairman, who is responsible for carrying out direct work with service organizations;
• a copy of the MKD technical passport;
• original application for concluding an agreement with RSO;
• notarized copy of the power of attorney.

This is how the necessary package of documents is drawn up in the case of direct management of the apartment building regarding all types of services, which include garbage removal, elevator work and much more. If the building has 12 or fewer apartments, then residents have the right to do without contractors.

In a rental situation, the entire amount of money paid for utilities is distributed among the owners of residential premises who signed an agreement with the contractor. And those apartment owners who refused to enter into an agreement reimburse other residents for their share of the paid amount.

When concluding an agreement with the RSO, the boundaries of responsibility for the provision of services are established (for example, for sewerage, hot and cold water supply, gas and electricity supply, heating). RSO, in the case of direct management of apartment buildings, is obliged to provide maintenance of external utilities.

Apartment owners provide support for in-house utility networks. Residents carry out this work independently or turn to a contractor.

In accordance with paragraph 103 of Rules No. 354, the RSO is not obliged to reduce the amount of payment for utility services to residents in the case where the decrease in the quality of services provided is not the responsibility of the resource supplying enterprise, but of the management company. And the owners of the premises, in turn, have the right to demand compensation for losses from the management company.

In the case of direct management of apartment buildings, residents do not pay for the services of the management company, and therefore it is quite difficult to obtain compensation for losses. According to the rules for recalculating payments for utility services, in the event of a deterioration in the quality of services provided, a reduction in the payment of the organization that charges it is provided.

In the case of direct management of apartment buildings, compensation for losses to the owners of premises depends on their decision. In this situation, residents recalculate the amount of payment for utilities if the apartment building is improperly maintained, regardless of who exactly is responsible for providing utilities - the management company or the RSO (this right of apartment owners in apartment buildings is approved by the law “On the Protection of Consumer Rights”).

In order to avoid unpleasant situations when concluding a new contract with the owners of the premises (in the case of direct management of apartment buildings), the management company, with the consent of the resource supplying enterprise, assumes the obligation to recalculate payments for utility services to the residents of the house due to the provision of services in an improper manner (due to the fault of the management company).

• Provision of public services of inadequate quality: what to do as a utility contractor

Conclusion of an agreement with RSO for non-residential premises

According to the new edition of the Decree of the Government of the Russian Federation dated January 1, 2017, the definition of non-residential premises has been supplemented. Previously, this concept meant a premises that was not residential and was not part of the common areas in the apartment building.

At the moment, non-residential premises in an apartment building mean the premises:

• specified in design or technical documents or in the electronic passport of the MKD;
• not being residential;
• not included in the common property in the apartment building, regardless of the presence of a separate entrance or connection to external networks of engineering and technical support.

Thus, non-residential premises include the concierge room, the stroller room, part of the basement, purchased and privatized by the residents of the apartment building, as well as those premises that were built-in and attached.

Non-residential premises also mean the part of the apartment building in which cars are placed (for example, a parking space, an underground garage, a parking lot).

In this case, we are talking specifically about those parking lots and parking spaces located inside the apartment building, and not about individual buildings.

Actions that must be taken with non-residential premises:

Stage 1. Information about non-residential premises in the North Ossetia is provided.

In January 2017, each owner of non-residential premises is required to enter into a direct agreement with the RSO for the provision of utilities (according to clause 6 of RF PP No. 354). This rule does not apply to parking spaces.

In connection with the new standards, when concluding an agreement with RSO, the management company, owners of non-residential premises and the resource supplying organization have certain obligations.

In order to conclude an agreement with the RSO for the maintenance of non-residential premises, the management authority is obliged to provide data on a particular non-residential premises to the RSO and send a notification to the owners of non-residential premises about the need to formalize a contractual relationship with the resource supplying enterprise.

List of information that must be provided to the RSO in writing:

• last name, first name, patronymic of the owner of the non-residential premises, OGRN;
• total area;
• type of activity;
• indicators of metering devices as of January 1, 2017 (if available);
• pipe section.

It is also necessary to note that the RSO uses the formula from Appendix N1 of the Decree of the Government of the Russian Federation to determine the volume of utilities when servicing apartment buildings (from the volume billed by the CA, the volume billed for non-residential premises is subtracted).

The management company, in turn, must indicate in its notification to the owner of the non-residential premises that he provide a copy of the agreement with the RSO to the management company, and also take meter readings every month.

Stage 2. An application is submitted to the RSO from the owners of non-residential premises.

The owner of non-residential premises is the initiator of concluding an agreement with the RSO in writing. For this purpose, he sends an application to the RSO indicating the data from subparagraphs “c”, “d”, “e”, “h”, “l”, “c” of paragraph 19 of RF PP No. 354:

• an individual must indicate the last name, first name, patronymic, date of birth, passport details, contact telephone number and name of the organization, registration address and contact telephone number for a legal entity;
• the address at which the non-residential premises in the apartment building are located and its total area;
• list of provided utilities;
• information about metering devices;
• methods of social support for paying for utilities;
• contract time.

For his part, the owner of non-residential premises is obliged to comply with the requirements in accordance with clause 6 of RF PP No. 354. In this case, the owner must submit an appropriate application for concluding an agreement with the RSO, even in the case where the MA did not inform him that it is necessary to formalize a contractual relationship with the resource supplying organization.

Stage 3. Issuance of the draft RSO agreement.

Information about each non-residential premises is transferred to the resource supplying organization by the owners or management authority. Thus, RSO is in a dependent position.

After the resource supplying organization has received the application, it is obliged to provide the applicant with a draft agreement within 10 days. The agreements are drawn up in 2 copies - one copy for each party.

The resource supplying organization cannot send a draft agreement or present an invoice if the management authority or the owner of the non-residential premises has not sent an application to conclude an agreement with the RSO.

In the case where an agreement with the resource supply company has not been concluded, RSO calculates the volume of consumed CG as for non-contractual consumption (in accordance with clause 6 of RF PP No. 354).

The amendment approving the mandatory conclusion of an agreement with the RSO for non-residential premises has been in effect since 01/01/2017. From this moment it was necessary to draw up a resource supply agreement. Of course, not every educational institution was able to fulfill this requirement in a timely manner.

In some cases, contracts for the assignment of claims were concluded between the management company and the RSO. As a result of this agreement, the management company receives the right of claim from the RSO and issues an invoice for the entire MKD, and the RSO, in turn, demands for the entire volume of CUs entering the house from the management company.

This approach poses certain risks that should be taken into account:

1. The court's position.

According to the law, there is a clear designation of who exactly should enter into an agreement, while the court has the right to recognize an agreement for the assignment of rights of claim as an imposition of its requirements on users.

1. The right to claim debt comes after ten days of the current month.

Thus, if the management company draws up an agreement for the assignment of the right of claim with RSO, it has the right to issue an invoice for the provided utility resources only after the tenth of the month.

1. The court has the right to cancel the agreement of assignment of the right of claim and oblige to draw up a direct agreement with RSO.

In some cases, the conclusion of an agreement for the assignment of the right of claim for a management company is recognized as a violation of the licensing requirement. According to Article 161 of the RF Housing Code, each management organization must properly formalize an agreement with the RSO.

• Conclusion of contracts for the supply of utility resources between the management and resource supply organizations

Concluding an agreement with RSO directly

Discussions about concluding direct agreements between the owners of MKD and RSO premises have been going on for a long time. This year this requirement will be fully implemented.

The state has its own reasons, taking into account which the authorities approved the mandatory conclusion of a direct agreement between the owners of premises in MKD and RSO. Almost thirty percent of management organizations have detected delays in the transfer of material assets to the RSO, which were received from the owners of premises in apartment buildings for the utilities provided. That is why only 80% of payments are received by the SRO on time.

According to the state, concluding a direct agreement with the North Ossetia will make it possible to cover the entire system of providing utilities and utilities. As the project developers suggest, this law makes it possible to reduce the population’s debt in the housing and communal services sector, which today reaches 1 trillion rubles and is still growing. Over time, this system will reduce the amount of arrears in the housing and communal services sector.

Concluding a direct agreement with the RSO ensures the transfer of material resources as payment for utility services from the owners of premises in the resource supplying organization, and payment for use under the utility agreement and for residential premises must be made according to a single document. This document contains information on the amount of fees for utilities and the use of residential premises, including identification codes for the consumer of services in the RNO.

The standard form of this document is approved by the Government of the Russian Federation, but it does not have to be in writing. When the owner of the premises is connected to the electrical network, gas network, drainage system and other communications, the conclusion of the contract occurs automatically, which means subsequent payment for the consumed utilities. The management organization is responsible for collecting the information necessary to fulfill the terms of the contract, calculate fees, and then send it to RSO specialists.

The list of required data includes personal information about the owners of premises using public services. The transfer of information in this particular case does not violate legal requirements. It is also necessary to take readings from individual and general meters.

Important!

According to the law, before September 1, 2017, a competition must be organized and an information and settlement center must be elected or a decision must be made on its organization. This period can be extended if 2 conditions are met: if an information and settlement center already exists in the region, and by 07/01/2017 it has been operating for at least a year. Moreover, the period can be extended when the regional MFC fulfills its responsibilities for charging fees for CG.

For management organizations, cooperatives and homeowners associations, time is given until October 1, 2017 to conclude an agreement with the information and settlement center. By November 1, 2017, management companies and RSOs are required to terminate previously concluded contractual relationships and enter into new contracts for the supply of resources for the maintenance of apartment buildings.

Both parties are liable in the absence of CG provision or in the case when the services provided are of poor quality. The government, in turn, proposes to control the quality of CG data at the border of the areas of responsibility of the manager of the MKD and the RSO.

In other words, resource supplying organizations take responsibility for the continuity of provision of utility services and their quality, but in the case when the cause of problems is problems with intra-house networks, the blame for the low quality of services is assigned to the entity.

The management company can also act as a mediator in resolving disputes involving deterioration in the quality of management services or their complete absence. Owners of premises in apartment buildings turn to the management authority in the case when it is necessary to recalculate the accrued fee.

The fact where exactly the violation occurred is of particular importance. For example, resource supply organizations are responsible for the border of the apartment building, and the management authority is responsible for any problems that arise inside the house. Management companies, like resource supplying organizations, must enter into agreements with settlement centers.

According to the amendments to the Housing Code of the Russian Federation dated January 1, 2017, the amount of penalties for late payment for utility bills has increased for owners of premises in apartment buildings. At the moment it is more than 20% per annum.

Also in 2017, the Government of the Russian Federation at the legislative level allowed the seizure of the only housing of debtors. Thus, apartment owners continue to live in this premises, but lose the opportunity to perform any manipulations with real estate - sell the apartment, register new residents in it, etc. As for the owners of private houses, the debtor’s state now has the right to separate the land plot and sell it to pay off the debt.

According to Law No. 45-FZ, it is allowed to collect non-payment for corporate debt by order, and a simplified procedure for considering civil cases has also been introduced. Now the Criminal Code has the right to go to court against all defaulters at once, rather than sue each one individually. These cases then go to the bailiffs.

For RSOs, the advantage of the new rules is that they will receive direct payments from the population, bypassing the MA and the real estate owners' association. Management companies and homeowners associations, in turn, will get rid of the debts of owners of premises in apartment buildings for the provided utilities. Moreover, the fee for corporate management previously charged by the management company is now not taken into account as profit for tax purposes.

For owners of premises in apartment buildings, the advantage is that the risk of bankruptcy of a management company, HOA or housing cooperative due to debts to the RSO is now reduced. The arrears are not compensated by the funds that were collected for the maintenance and ongoing repairs of the apartment building. It also became possible to recalculate payment in case of poor quality of services provided.

However, owners of premises in apartment buildings are not immune from confusion with payments to various organizations in different places. It is also possible that there will be problems with recalculation due to the poor quality of the services provided.

Finally

According to experts, these innovations in the Housing Code of the Russian Federation can only provide a general direction and strategy. All subtleties should be indicated in decisions in a short time, and also taking into account possible options for the development of the situation. If this does not happen, then innovation may do more harm than good.

Information about the experts

Maria Goryacheva, Head of the Judicial Arbitration and Claims Department of the Legal Department of PJSC GC TNS Energo. PJSC TNS Energy Group of Companies is one of the largest independent energy sales enterprises in the Russian Federation, managing 10 energy sales organizations serving consumers in 11 regions of the Russian Federation.

On May 4, the Ministry of Construction of the Russian Federation issued letter No. 20073-АЧ/04, in which it explained whether it is necessary to make changes to the control system when switching to direct contracts, in which cases RSO cannot unilaterally refuse to fulfill a resource supply contract. More interesting facts in today's article.

Is the consent of the owners necessary for RSO to refuse to fulfill a resource supply agreement?

We are talking about the situation described in clause 2, part 1, art. 157.2 of the Housing Code of the Russian Federation: is it necessary to obtain the consent of the owners in case of unilateral termination of the resource supply agreement by the RSO.

The Ministry of Construction of the Russian Federation says that, according to clause 2 of part 1 of art. 157.2 of the Housing Code of the Russian Federation, one of the grounds for concluding a direct contract is the termination of resource supply contracts concluded between the MA and the RSO as a result of the unilateral refusal of the RSO to fulfill them.

The procedure and grounds for such a unilateral refusal by RSO to fulfill a resource supply agreement are described in Part 2 of Art. 157.2 Housing Code of the Russian Federation. RSO can refuse to fulfill the agreement if the organization managing the apartment building has a debt recognized by it or confirmed by the court to RSO for two months or more.

In this situation, the RSO does not need to obtain the consent of the owners to implement a unilateral refusal to fulfill the concluded resource supply agreement.

Will the management contract automatically change when switching to direct contracts?

The owners of premises in apartment buildings on OSS decided to switch to direct contracts. The question arises: does such a decision automatically exclude from the subject of the management agreement the responsibility of the management organization to provide utility services to the owners?

The general meeting of owners of premises in an apartment building may decide to switch to direct contracts with the RSO (clause 1, part 1, article 157.2 of the Housing Code of the Russian Federation). In this case, the direct contract is considered concluded from the date determined in the OSS decision.

By decision of the RSO, this deadline may be postponed, but not more than three calendar months. The RSO notifies the initiator of the meeting about the postponement of the meeting no later than five working days from the date of receipt of copies of the decision and minutes of the OSS. The notification procedure is described in Part 1 of Art. 46 Housing Code of the Russian Federation.

The change or termination of the MKD management takes place in the manner prescribed by civil legislation (Part 8 of Article 162 of the Housing Code of the Russian Federation). Changes and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the agreement (Part 1 of Article 450 of the Civil Code of the Russian Federation).

It turns out that for the termination of a resource supply contract, the amount of debt for a utility resource used to provide a utility service is legally significant.

Debt for utility resources consumed for the purpose of using and maintaining the resource in the apartment building is not considered a basis for the unilateral refusal of the RSO to fulfill the resource supply agreement.

Who transmits the testimony of the PU when switching to direct contracts?

When switching to direct contracts, the obligation to transfer meter readings to the RSO remains with the person managing the apartment building, by virtue of Part 11 of Art. 161 Housing Code of the Russian Federation.

Who will pay for CI on SOI when switching to direct contracts

Management organizations cannot refuse (Part 12 of Article 161 of the Housing Code of the Russian Federation) from concluding agreements, including in relation to utility resources consumed in the maintenance of common property in apartment buildings, with RSO. An exception is that direct contracts are concluded exclusively for the supply of utilities (Part 1, Article 157.2 of the Housing Code of the Russian Federation).

It turns out that the transition to direct contracts does not affect the relationship of the management company with the RSO, which developed within the framework of contracts in relation to utility resources consumed in the maintenance of common property in the apartment building.

The Ministry of Construction of the Russian Federation concludes: the fee for the CD on the SOI of the management organization is billed by the RSO. The management organization, in turn, issues an appropriate fee to the owners of the premises as part of the payment for the maintenance of residential premises.

How are the areas of responsibility of MA and RSO delineated under direct contracts?

The issue of delimiting the responsibilities of the management organization and the distribution organization arises especially acutely when it comes to the provision of poor quality public services. Of course, few people would want to take responsibility for this.

The organization that supplies resources for the provision of utility services is responsible for the supply of such resources of appropriate quality to the boundaries of the common property in the apartment building and the boundaries of the external networks of engineering and technical support for a given house (Part 15 of Article 161 of the Housing Code of the Russian Federation). In the MKD management agreement, you can specify a different area of ​​responsibility for the RSO.

Part 1 of Article 161 of the Housing Code of the Russian Federation establishes that the management of apartment buildings, among other things, must ensure favorable and safe living conditions for citizens in the house. The person managing the house receives appeals from owners and tenants of residential premises about violations of the requirements for the quality of public services and interacts with the RSO when considering these appeals, conducting inspections, eliminating violations and sending information about the results of consideration of appeals (Clause 3, Part 11, Art. 161 Housing Code of the Russian Federation).

The Ministry of Construction of the Russian Federation notes that the organization managing the house acts as a kind of single window for receiving complaints from consumers about violations of the quality of the utilities. In addition, she must be responsible for the quality of the utilities provided inside the apartment building. RSO is responsible for the quality of utilities provided up to the boundary of intra-house utilities.

What to do if the house has switched to direct contracts, and the management company continues to charge fees for the utilities?

So, the owners decided to switch to direct contracts, but the management organization continues to charge for utilities. What can be done in such a situation?

If this happens, the management organization is obliged to pay a fine to the owners of premises in the apartment building and tenants of residential premises. The fine is large - the amount to be paid multiplied by two. There is no need to pay a fine if the violation was eliminated before payment for utility services was made based on the specified payment documents.

Is it possible to check whether the management organization has paid a fine to the owners?

We continue the topic of the fine that the management organization must pay to the owners and tenants of premises in apartment buildings if, after concluding direct contracts, it continues to issue receipts for the utilities. Is it possible to conduct an inspection on this issue and what to do if the MA does not fulfill this obligation?

The Ministry of Construction of the Russian Federation explains: according to Part 1 of Art. 192 Housing Code of the Russian Federation, UO manage apartment buildings on the basis of a license. A license to carry out entrepreneurial activities for the management of apartment buildings is issued by the State Housing Authority on the basis of a decision of the licensing commission of a constituent entity of the Russian Federation. In relation to management organizations, the bodies of the State Housing Inspectorate of the constituent entities of the Russian Federation exercise licensing control.

The subject of licensing control is compliance by management organizations with the licensing requirements listed in Part 1 of Article 193 of the Housing Code of the Russian Federation. Licensing requirements include compliance with the requirements provided for in Part 2.3 of Art. 161 Housing Code of the Russian Federation.

This article provides that the management authority, when managing apartment buildings, is responsible to the owners of the premises in the house for the provision of all services and performance of work that ensure the proper maintenance of common property, for the provision of utilities depending on the level of improvement of the house, for ensuring the readiness of engineering systems.

The responsibility for issuing payment documents is assigned to the provider of utility services (clause 67 of Rules No. 354). When concluding direct contracts, RSO becomes the provider of utility services. It is responsible for providing receipts to consumers. Therefore, if the MA continues to issue payment documents after switching to direct contracts, this is regarded as a violation of the licensing requirement.

Can the GZhN body check the RSO for the correctness of the calculation of the fee?

Can GZHI check the resource supplying organization for the validity of charging the amount of fees for utility services, and if so, what will be the subject of the check?

The powers of the State Housing Authority bodies are described in detail in Art. 20 Housing Code of the Russian Federation. GZhN bodies must prevent, identify and suppress violations of the requirements established by housing legislation, including those for the provision of utility services to owners and users of premises in apartment buildings and residential buildings.

In direct contracts, RSO is the provider of utility services, therefore its activities must be carried out in accordance with Rules No. 354. If RSO violates the procedure for calculating fees for utilities, it will violate the provisions of Rules No. 354. This circumstance will be the basis for inspection by the State Housing Inspectorate authorities.

Here is a letter from the Ministry of Construction of the Russian Federation. You can find its full text. And we are interested to hear your opinion. Tell us in the comments whether you agree with the position of the Ministry of Construction of the Russian Federation, whether the department has disclosed all the controversial issues related to the transition to direct contracts.

Judicial practice shows that RSOs universally ignore the requirements of the law when charging money for the utility resource consumed by an apartment building, and management organizations (hereinafter - MA) due to lack of professionalism, do not have the opportunity to check the correctness of the accrual and prove the illegality of the accrual. But don’t rush to give up if you receive a claim from RSO.

Legal basis for interaction between RSO and management organizations

By virtue of the provisions of Art. 161 of the Housing Code of the Russian Federation, clause 8 and clause 9 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by the RF PP dated 05/06/2011 N354, the management company/homeowners association/housing cooperative are the provider of utility services (hereinafter referred to as the CU) and are obliged purchase thermal energy and hot water from RSO in order to provide utilities to citizens.

Federal Law “On Heat Supply” dated July 27, 2010 No. 190-FZ regulates the relationship between the resource supplier and the resource consumer.

However, the procedure for determining the amount of energy in housing legislation differs significantly from the procedure provided for by general civil legislation.

Article 4 of the Federal Law “On the entry into force of the Housing Code of the Russian Federation” establishes the unconditional priority of the norms of housing legislation over the norms of other laws and other legal acts regulating housing relations.

RSO often refer to paragraph 1 of Art. 544 of the Civil Code of the Russian Federation, which provides for the possibility of establishing a calculation method for the volume of energy consumed by a separate law, legal acts or agreement of the parties. However, housing legislation, which has priority in relations between the RSO and the UU, does not allow this possibility - the amount of energy consumed is calculated either according to the standard or according to the meter

When making payments for the supplied resource, RSOs are required to take into account that in cases provided for by law, the Government of the Russian Federation, as well as the federal executive authorities authorized by it, may issue rules binding on the parties when concluding and executing public contracts and settling mutual settlements (Article 426 Civil Code of the Russian Federation).

Such rules are the following regulations:

1. Federal Law of December 7, 2011 No. 416-FZ “On water supply and sanitation”;
2. RF PP dated February 14, 2012 No. 124 “On the rules mandatory when concluding contracts for the supply of utility resources for the purposes of providing utility services”;
3. RF PP dated July 29, 2013 No. 645 “On approval of standard contracts in the field of cold water supply and sanitation”;
4. RF PP dated July 29, 2013 No. 643 “On approval of standard contracts in the field of hot water supply”;
5. “Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings”, approved by the RF Government of 05/06/2011 No. 354;
6. RF PP dated August 8, 2012 No. 808 “On the organization of heat supply in the Russian Federation and on amendments to certain acts of the Government of the Russian Federation”;
7. “Rules for establishing and determining standards for the consumption of utility services”, approved by the RF Government of May 23, 2006 No. 306;
8. “Requirements for making payments for resources necessary for the provision of public services”, approved by the RF Government of March 28, 2012 No. 253;
9. RF PP dated June 29, 2016 No. 603 “On amendments to certain acts of the Government of the Russian Federation on the provision of utility services”;
10. RF PP dated August 13, 2006 No. 491 “On approval of the Rules for the maintenance of common property in apartment buildings and the Rules for changing the amount of fees for the maintenance and repair of residential premises in the event of the provision of services and performance of work on the management, maintenance and repair of common property in apartment buildings of inadequate quality and (or) with interruptions exceeding the established duration.”

Case law and legal framework to consider

As judicial practice shows, RSO everywhere ignores the requirements of the law, and management organizations, due to a lack of professionalism, do not have the opportunity to check the correctness of the accrual and prove the illegality of the accrual.

Decisions of the Arbitration Courts of recent years (cases No. A40-97448/15, A40-154803/2013, A40-103676/2013, A40-181013/2014, A40-65794/2014, A40-119898/2014) confirm the illegality of the amounts of debts collected and RSO charges issued to the MA.

Arbitration courts of higher instances have established that RSO often, without legal grounds, calculate the volume of hot water based on the consumption standard in residential premises where individual metering devices are installed, which contradicts the provisions of Art. 157 of the Housing Code of the Russian Federation, Rules for the provision of utility services to citizens, approved by the RF GD dated May 23, 2006 No. 307 (hereinafter referred to as the RF GD No. 307) and the Rules mandatory when concluding contracts for the supply of utilities for the purpose of providing utility services, approved by the RF GD dated February 14, 2012 No. 124 (hereinafter referred to as RF PP No. 124).

Calculation according to the standard is applicable only to residential buildings that are not equipped with metering devices.

In addition, the Arbitration Courts of higher instances have established that during the trial, RSOs change the methodology for calculating accruals for services, while referring to the acts of work performed, signed by the parties, submitted to the case materials by the RSO. RSO insists that such acts can serve as confirmation of the supplied volumes of energy resources.

By virtue of clause 2 of the RF PP No. 124, these Rules apply to relations arising from energy supply contracts concluded before the entry into force of these Rules by management organizations with the RNO, in terms of the rights and obligations that arise after the entry into force of these Rules. Subclause “d” of clause 18 of RF PP No. 124 in the energy supply contract provides for the obligations of the parties to take and transmit readings from metering devices and (or) other information used to determine the volume of resources supplied under the contract. Unless otherwise established by agreement of the parties, the contractor provides the RSO with the relevant information before the 1st day of the month following the settlement month.

Arbitration courts of higher instances universally reject the arguments of the RSO that the management organization did not fulfill the obligation to transfer information about the readings of metering devices to the supplier, since this norm is only of an organizational nature and does not provide for the consequences of violating the deadline for providing the readings of individual metering devices to the RSO.

And if settlements between the RSO and the MA are carried out through an agent (settlement center, RC), then, under the terms of the quadripartite agreement on the organization of settlements on the basis of a single payment document, the RSO must actually receive readings from individual metering devices (IMU) from the RC on a monthly basis.

Arbitration courts of higher instances in their decisions emphasize that untimely provision of evidence to the IPU cannot:

Serve as a basis for refusal to recalculate the volume of services provided in accordance with the indications of the IPU;

Does not constitute a basis for determining this volume in any other way;

It is not a basis for refusal to recalculate its cost if the subscriber subsequently provides reliable accounting information within a reasonable period of time.

Based on the systemic interpretation of Art. 544 Civil Code of the Russian Federation, clause 1, art. 19, paragraph 2, art. 13 of the Law “On Energy Saving” No. 261-FZ, paragraphs. “c” clause 21 of the RF PP No. 124, the communal resource actually supplied to the apartment building, not equipped with a common house metering device, is defined as the total volume recorded by apartment metering devices and the standard for apartments where such devices are not available. From the literal interpretation of paragraphs. “c” of clause 21 of the RF PP No. 124 it follows that for the use of IPU readings, the fact of their presence is sufficient. This norm does not contain reference to the IPU readings transmitted by the RSO.

When making settlements with the MA through an agent, RSO everywhere freely disposes of payments received through a transit account, offsetting them for another earlier period, different from the payment period specified by the consumer of services. At the same time, RSO does not provide evidence that it previously notified the MA about the ongoing offsets. At the same time, the management did not change the purpose of payments and did not agree to credit payments to the debt; the opposite does not follow from the case materials.

Such actions are recognized by higher courts as unlawful. Neither the plaintiff, nor the defendant, nor the distribution center, nor the bank has the right to independently change the purpose of payment, which must correspond to the payment period specified in the payment documents of the population.

In accordance with clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims”, in order to terminate an obligation by offsetting for a different period, an application for such offset must be received by the relevant party.

RSO's references to the fact that the MA, when signing invoices and delivery certificates, should have known about the offsets being carried out, were recognized by the courts as untenable, since these documents confirm the volume of supply of the resource before recalculation. In addition, these documents are not related to monetary settlements carried out by the parties.

Based on the systematic interpretation of the provisions of the Civil Code of the Russian Federation and Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65, when making a set-off, the creditor is obliged to notify the debtor about this within the three-year limitation period.

RSOs quite often offset payments received from consumers during periods that are beyond three years (the statute of limitations).

According to clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65, an obligation cannot be terminated by offsetting a counter-similar claim if, at the request of the other party, the claim is subject to a statute of limitations and this period has expired (Article 411 of the Civil Code of the Russian Federation).

Under such circumstances, RSO's actions to set off claims for which the statute of limitations has expired is an abuse of the right to set off.

According to the basic principle of calculations by CU performers for utility resources, namely, taking into account the fact that the CU does not have an independent economic interest different from the interests of citizen-consumers, its obligations to organizations supplying the relevant resources should not be greater than in the case of these organizations concluding direct contracts with the population (see (Decision of the Supreme Court No. 305-ES15-7767 dated November 2, 2015, Determination of the Supreme Court No. 65-PEK16 dated 04.04.2016, Determination of the Supreme Court Case No. 305-ES16-3833 dated 18.08 .2016). The content of this principle follows from the essence of economic relations, since the only source for paying RSO bills for the corresponding utility resource is payments from the population for the corresponding utility bill.

According to Art. 544 of the Civil Code of the Russian Federation, payment for energy is made for the amount of energy actually received by the subscriber in accordance with energy accounting data, unless otherwise provided by law, other legal acts or agreement of the parties. In this case, the procedure for payments for energy is determined by law, other legal acts or agreement of the parties.

Separately about the odds 12/7

Recently, in Moscow, cases of recalculation for supplied heat energy from PJSC "MOEK" to the management company for early periods have become more frequent.

For example, PJSC MOEK did not issue additional or adjustment invoices to housing cooperatives (Case No. A40-154803/2013), but at the same time, RSO recalculated for a long period using a coefficient of 12/7, referring to the resolution of the Moscow Government dated July 14 .2015 No. 435-PP.

The assertion of PJSC "MOEK" about the legality of using the coefficient 12/7 in the calculation until 07/15/16 is universally rejected by Arbitration Courts of all instances, since the Moscow Government Decree No. 435-PP dated 07/14/2015, on which the legal position of RSO is based, has come into force force after controversial periods.

Six Moscow homeowners' associations/housing cooperatives appealed the Moscow Government's resolution No. 435-PP dated July 14, 2015. On December 17, 2015, the Moscow City Court considered administrative case No. Za-745/2015 in open court. Clause 2 of the said resolution (on the extension of its validity to the period preceding the day of its entry into force) was declared invalid. The decision of the Moscow City Court dated December 17, 2015 No. Za-745/2015 was left unchanged by the Resolution of the Supreme Court of the Russian Federation dated April 24, 2016.

The illegality of applying the Moscow Government Resolution No. 435-PP dated July 14, 2015 in earlier periods is confirmed by the Ruling of the Supreme Court of the Russian Federation No. 305-ES16-10525 dated August 18, 2016 and numerous Resolutions of the Arbitration Court of the Moscow District.

The Housing Inspectorate has no right to interfere in the relationship between the RSO and the UO

Recently, RSOs have increasingly begun to use administrative resources, involving housing supervision authorities to collect debt for the supplied utility resource. Housing supervision authorities issue instructions to the management authority, which oblige the management organization to repay the debt for the “hot water supply” and “central heating” utilities.

Do not rush to comply with this instruction, since it is not based on the law. Proof of this is the Decision of the Moscow Arbitration Court (case No. A40-85918/2016), which entered into legal force. The Moscow Arbitration Court invalidated the order of the State Property Committee of Moscow regarding the MA. The Ninth Arbitration Court of Appeal, leaving this decision unchanged, found that the relations that arose between the management company and PJSC "MOEK" regarding payment for utilities under a heat supply agreement are of a civil nature and have other procedural grounds and actions for resolving issues regarding debt payment .

Another example is case No. A40-196837/2016. The court came to the conclusion that the housing inspectorate, when issuing the controversial order, went beyond the powers granted to the supervisory authority. (Regulations on the State Housing Inspectorate of Moscow, approved by Decree of the Moscow Government of July 26, 2011 No. 336-PP). The body exercising the functions of state housing supervision does not have the right to interfere in economic activities and give instructions to participants in civil transactions on how they need to make payments.

P.S. In this articlegivenjust a few examples from the relationship between RSO and UO. Concluding this article, the author draws the attention of management authorities: do not rush to give up if the claim is from the RSO, but hurry to find a professional, a professional who will help you understand the legality of the claims presented and, if necessary, represent your interests in the courts. When concluding an agreement to represent your interests in court, check with the representative whether he has handled similar cases in the Arbitration Courtcourtand study its case law.

Olga PERMINOVA,

independent expert in the field of housing and communal services

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