When changing the method of forming a capital repair fund, management and homeowners associations often make mistakes. Because of them, the prosecutor's office may demand that the money be returned to the relocation operator, even if major repairs to the house have already been made. Most errors can be foreseen and corrected at the stage of the OSS.
Can TSN become the owner of a special account for major home repairs?
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Illegitimate protocol and missing quorum
Ekaterina Okunkova identified seven common mistakes that management organizations make when switching to a special account. The first two are the illegitimate OSS protocol and the established quorum on issues.
There are unscrupulous management companies that falsify the minutes of the general meeting of owners. If such a violation is discovered, the prosecutor's office will require the funds to be returned to the account of the regional operator.
The lecturer cited a case from her practice: the MA provided the OSS protocol on the transition to a special account. It contained handwritten signatures of the owners of the premises. After checking the document, it turned out that the owners had chosen a bank that was excluded from the list of those allowed to open a special account.
The regional operator contacted the MA and asked to hold a meeting to re-elect the credit institution. At this time, the company changed its meeting specialist. Not knowing all the details of the previous OSS, he carried out a new one.
The new meeting was declared invalid, the owners began calling the registrar operator, the prosecutor's office and the State Housing Property Inspectorate: it turned out that they were not aware that a year ago they had decided to switch from the registrar operator to a special account.
As a result, it turned out that the previous MA specialist attached to the minutes a sheet with “live” signatures collected at another meeting. The company was punished.
Lack of a quorum on issues is also one of the most common mistakes made by management and homeowners associations. The number of votes required for a positive decision on various aspects of the overhaul depends on the essence of the issue itself. In addition, each subject has its own established practice.
For example, GZHI and the Capital Repair Fund in St. Petersburg consider the necessary quorum on issues of how to change the formation of the capital repair fund ⅔ votes of the total number. In the Moscow region - more than 50% of the total votes.
You will learn Ekaterina Okunkova’s recommendations on how to resolve this issue by watching the video recording of the online seminar.
Who and how issues receipts for paying contributions for major repairs?
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The director of the legal service “Unified Center for Protection” (edin.center) Konstantin Bobrov answers:
Housing legislation provides for the obligation of each tenant to pay contributions for major repairs of an apartment building. The previous owners did not fulfill this obligation. And the responsibility for paying contributions for major repairs passed to the new owner along with the housing.
Debt for utility bills is attached to the real estate, and not to its owner. Therefore, you still have to pay the debt, otherwise it will be collected in court. If you do not agree with the amount of debt, you can submit an application to the management company with a request to provide a written explanation of the procedure for calculating these contributions. If you go to court with a demand for collection of payments, it is also possible to reduce the amount of the accrued penalty. The reduction can be justified by the fact that the debt arose due to the fault of the previous owners of the residential premises, and not yours.
Who can avoid paying for major repairs?
Is it possible to sell an apartment with a debt for major repairs?
Ambiguous wording of mandatory questions and incorrect identification of the owner of a special account
Often in the OSS protocol, all the questions necessary to change the method of forming a capital repair fund are combined into one, and a general formulation appears. You can't do that. Be sure to break down the questions and make them unambiguous.
Do not write “and so on”; hold the meeting only within the framework of the topics stated in the agenda. Find out how to include an issue on the agenda during the OSS from the video recording of the online seminar.
The owner of a special account can only be a legal entity:
- management organization, HOA or housing cooperative.
At the same time, the collection of funds in the presence of a special account is also carried out by the management company, HOA or housing cooperative. In this case, major repairs are included as a separate line in the receipt for the management and maintenance of the common property of the apartment building.
- The regional overhaul operator is a third-party organization that issues a separate receipt.
Home inspection before purchasing
In order not to have to go to court with an application against your predecessor to collect debts from him for major repairs, it is worth carefully checking how regularly he paid for the services for the maintenance of common property in the apartment building in which his apartment was located.
Before buying an apartment, you should make sure that there are no debts on it
Before concluding a purchase and sale agreement, you must request:
- The seller has receipts confirming that he has paid all contributions for major repairs in the prescribed amount. On the day of sale, the owner should not have any debt.
- The paying agent, homeowners association or management company has a statement of the personal account of the owner who decided to sell the property. It reflects all debts. The potential buyer has the right to request such documents.
Note: if the new management company began to fulfill its obligations after the registration of ownership of the property by the seller, the relevant documents must be requested from its predecessor. This will delay the process, but the buyer will be able to make sure that there are no debts and avoid problems in the future.
In some regions of Russia, an online service has already been launched that allows you to track information whether receipts for utilities and major repairs have been paid at a specific address. This system speeds up the process, because there is no need to wait until the documents are sent to the manager by mail.
Sometimes the seller unknowingly leaves such debts, forgetting in the hustle and bustle to pay the receipts received in recent months. This issue can often be resolved amicably by showing a certificate issued by the HOA or management company, which confirms that the bills were not paid for the period when the seller was registered as the owner of the apartment. Conscious citizens make such payments voluntarily; the matter does not come to court proceedings.
Incorrect bank selected; the list of overhauls includes work not related to this article
A special account can be opened in Russian banks that meet the requirements established by the Government of the Russian Federation. The Central Bank of the Russian Federation publishes information on credit institutions that meet these requirements on a quarterly basis. You can check the bank using the link.
Today there are six banks in Russia where you can open a special overhaul account. These are PJSC Sberbank of Russia, Bank GPB (JSC), VTB Bank (PJSC), JSC Rosselkhozbank, JSC ALFA-BANK, PJSC Bank FC Otkritie.
Inclusion in the list of major repairs of work that is not related to this type of repair may result in a decision from the prosecutor's office to return money to the regional operator. Ekaterina Okunkova warned: there is no need to confuse the types of work on major and current repairs. Details are in the video.
Can the bank write off the HOA’s debt from the special capital repair account?
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It's time to pay the bills: is the new owner obliged to pay off the debt for major repairs?
Usually, when buying an apartment, we try to take into account all the nuances, but this does not always work out. Often the new owner forgets to check the debts that he receives from the old owners of the apartment, including for major repairs. MIR 24 learned from lawyers about how to deal with debt for major repairs from former owners, who is obliged to pay it, and will the court help in this matter?
According to lawyer Yuri Kapshtyk, the homeowner’s obligation to pay for major repairs is enshrined in Part 1, 3 of Art. 158 Housing Code of the Russian Federation. Failure to fulfill obligations leads to the formation of debt, penalties and penalties. Debt reminders should be sent to defaulters. Every month, a penalty is charged on the debt for major repairs at a rate of 1/300 for each day of delay.
“The Housing Code of the Russian Federation clearly states that owners pay contributions for major repairs on the basis of payment documents, which must be provided to them within a certain time frame. However, the law does not require how these payment documents should be provided,” says lawyer Zhanna Kazarinova.
Usually receipts are thrown into the mailbox, but their absence is not a reason not to pay - a conscientious owner always has the opportunity to check the debt and print receipts for payment on the operator’s website. But if payment documents are not available on this site, you can record this fact with the help of a notary and submit it to the court.
In addition, there is a three-year statute of limitations. It is calculated from the moment the obligation to pay the next installment occurs. You cannot collect debt for more than three years. But there is one nuance that you should pay attention to:
“The court itself cannot apply the limitation period. It needs to be reported to the court. But the owner cannot do this, since the application for collection of contributions is considered by order without the participation of the parties. The owner can submit a written application to the court about the application of the limitation period before the order is issued, but he almost never knows about the court order filed against him,” notes Zhanna Kazarinova.
Currently, applications for the collection of debts on contributions for major repairs and utilities in an amount not exceeding 500,000 rubles are considered in the order of writ proceedings: the judge, on the basis of documents submitted by the applicant, without calling the parties, issues an order, which is an executive document. The court is not even obliged to describe why it is collecting this amount. The court collects contributions for major repairs in the order of writ proceedings for both five and ten years; the statute of limitations does not apply, because no one declares it.
Then this order is sent to the debtor, who has the right, within ten days from the date of receipt, to send objections to the court regarding its execution, says Zhanna Kazarinova. In this case, the debtor is not obliged to explain why he objects - the very fact of disagreement is sufficient. It is necessary to send objections to the court within this period by a valuable letter with an inventory and notification of delivery, or submit it directly to the court office against signature. After receiving objections, the court will cancel the order and send a ruling to the parties to cancel it.
But is the new owner obliged to pay this debt? If you inherit an apartment, then the responsibility for debts and credit obligations, including fees for major repairs, passes to you. At the same time, the statute of limitations is also three years, says Yuri Kapshtyk.
When purchasing an apartment, you, becoming the new owner, must also pay debts:
“Debts are transferred because you have become the new owner and you are entrusted with the responsibility of maintaining the premises, including paying off the debt. In order not to buy a “debt” apartment, at the time of concluding the purchase/sale agreement, ask the seller to provide or receive statements of mutual settlements for utilities and make sure that the agreement states that there are no debts on the apartment. Attach to the acceptance/transfer certificate of the premises, including calculations for contributions for major repairs,” advises Yuri Kapshtyk.
If the seller did not notify you of the debt, and the contract states that there are no debts, you have the right to recover the amount of the debt in court from the previous owner, since he acted in bad faith.
“In the apartment alienation agreement, the issue of debt can be resolved. But it should be borne in mind that the debt will most likely still be collected from the new owner. And the old owner must compensate the new owner for losses. But after the transfer of rights, the former owner usually begins to evade this responsibility. Therefore, the easiest way is to reduce the cost of the apartment by the amount of debt and penalties,” comments Zhanna Kazarinova.
In addition, there are situations in which the new owner bought an apartment with the debt already paid off, and subsequently, having recalculated the debt for major repairs, saw that the amount of debt had changed upward. This can happen due to mistakes by the management company: incorrectly specified apartment footage or address. Usually in this case the dispute is resolved in favor of the owners:
“The negligence of the management company is clearly evident here, so if at the time of the sale all debts were repaid and there was a supporting document, then both owners, old and new, have the right not to recognize this debt. These are technical mistakes made directly by the management company’s employees, and if the case is considered by a judge, it will be difficult for them to prove that this debt must be paid to the owner,” says Yuri Kapshtyk.
Therefore, the only sure way to avoid paying the debts of the former owner of the apartment is to carefully check all documents before buying/selling.
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Late notification of the regional operator and the regulatory authority about the transition to a special account
This error does not entail serious consequences for the management organization, other than loss of time. If the management does not promptly notify the regional operator and the regulatory authority about the transition to a special account, then the transition is not carried out at the time the company needs
Watch the full video recording of the online seminar and find out more details and useful information about the process of changing the way the capital repair fund is formed:
- how to open or close a special account correctly;
- how to challenge the prosecutor’s office’s submission;
- why does the prosecutor’s office refuse to allow the management company and the homeowners’ association to switch to a special account;
- whether to return the money to the regional operator if required by the prosecutor's office.
Who is responsible for paying debts?
Property legal relations are regulated by the norms and provisions of the “Housing Code of the Russian Federation” dated December 29, 2004 No. 188-FZ, as amended and supplemented. Starting from January 2013, homeowners in apartment buildings are required to pay for funds spent on major repairs. It is calculated based on the square footage of the premises registered with the owner.
Paragraph 3 of Article 158 of the RF Housing Code regulates two scenarios for the development of events:
- Obligations to pay the debt are assigned to the owner of the property, regardless of when they arose. That is, the new owner who bought the property from an individual who owes money to the state for major repairs is obliged to pay them himself.
- If the previous owner was a government body or a subject of the Russian Federation, a municipal or public entity, the debt obligations will not be transferred to the new owner. If he decides not to risk it and pays the debts owed by the state or municipality, then the entire amount is transferred to the account for future payments.
Note: if the debt for utility resources used for normal life - electricity, gas, water, heat and electricity is registered with the person, and will not be transferred to the new owner, then unpaid payments for major repairs belong to the apartment, that is, debts for major repairs are transferred to a new owner.
How to buy an apartment with debts
Next, you should find out whether it is possible to sell an apartment with a debt for major repairs. It is relevant both for unscrupulous sellers and for buyers who are careless in checking all documents and receipts. The question is clear - such a possibility exists, and the debts are transferred to the new owner of the apartment along with the property.
A properly drafted purchase and sale agreement will help protect yourself
In order to somehow protect yourself and be able to legally recover the appropriate amount from the seller, you must:
- In the purchase and sale agreement, include a clause obliging the seller to provide receipts confirming the fact of payment for major repair services for the entire period of ownership of the property.
- Request receipts. Even if the seller provides fake documents, it will be easier for the buyer to prove his case in court.
Having bought an apartment with debt for major repairs, you should know how not to incur additional expenses after purchasing the property. Having the above documents in hand, you can safely go to court. In this case, it is advisable to pre-pay off the debts and demand full compensation from the previous owner.
Note: if we are talking about a small amount of debt, and the previous owner refused to pay it voluntarily, it is not always advisable to go to court. You will have to spend a lot of time and effort, as well as pay legal fees.
