It would seem that the question of who is the provider of public services is clear to everyone and not at all complicated. It is logical to assume that the person providing utility services is their executor. Paragraph 7 of clause 2 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 Government of 05/06/2011 N354 (hereinafter referred to as Rules 354), establishes: “the contractor” is a legal entity, regardless of the organizational and legal form or individual entrepreneur providing utility services to consumers.” If the house is managed by a management organization (hereinafter referred to as the MA), then by virtue of Part 2 of Article 162 of the Housing Code of the Russian Federation (and several other norms), it is this MA that provides utilities. If the house is managed by an HOA, then by virtue of Part 1 of Article 135 of the Housing Code of the Russian Federation (and several other norms), it is the HOA that provides utilities. Thus, the provider of utility services is either the management company or the homeowners association. However, a number of amendments made to the housing legislation of the Russian Federation make the situation not so clear-cut .
New concept of “performer”
In addition to Rules 354, which regulate the legal relationship between providers and consumers of utility services, it is used in the Rules that are mandatory when a management organization or homeowners association or a housing cooperative or other specialized consumer cooperative enters into contracts with resource supply organizations, approved by the RF PP dated February 14, 2012 N124 (hereinafter referred to as Rules 124 ). Paragraph 3 of paragraph 2 of Rules 124 until 06/30/2016 defined the term “performer” absolutely identical to Rules 354, but from June 30, 2021, the RF Regulation dated 06/29/2016 N603 , by which this definition was changed. In the currently valid version of Rule 124, it is established: “executor” is a legal entity, regardless of organizational and legal form, or an individual entrepreneur who is entrusted with the responsibility for maintaining common property in an apartment building and (or) providing utility services to the consumer in cases where an agreement for the management of an apartment building, including a partnership or cooperative concluded with a management organization, or the charter of a partnership or cooperative imposes the obligation to provide consumers with utility services.”
It turns out that, in accordance with the cited norm, the performers for the purposes of applying Rules 124 are: - Persons providing services for the maintenance of common property (hereinafter referred to as PO); — Persons providing utility services (hereinafter referred to as CU); — Persons providing services for the maintenance of information objects and providing CG.
Compliance with at least one of the listed options means having the status of a performer. At the same time, a number of provisions of Rule 124 allow us to conclude that it is the contractor who is obliged to provide utility services to consumers and, for this purpose, to purchase utility resources from resource supply organizations (hereinafter referred to as RSO). Paragraph 4 of paragraph 2 of Rules 124 establishes: “utilities” - the implementation by the contractor of activities to supply consumers with any utility resource separately or 2 or more of them in any combination ...”. According to paragraph 5 of Rule 124, “ The Contractor sends an application (offer) to the resource supply organization to conclude a resource supply agreement,” and the same paragraph 5 classifies management organizations, homeowners' associations, and cooperatives as contractors.
That is, from the norms of Rule 124 it follows that the executor is the person who either maintains the common property of the apartment building, or provides the property rights, or does both. Such a contractor is obliged to enter into a resource supply agreement and provide utilities to consumers. Consequently, if an HOA or a management company manages a house and provides services for the maintenance of common property, they fall under the definition of “executor” and are obliged to provide utilities.
It is important to note that the Housing Code of the Russian Federation establishes requirements for management organizations and homeowners' associations regarding the provision of utility bills. For example, part 2 of Article 162 of the Housing Code of the Russian Federation establishes: “Under an agreement for the management of an apartment building, one party (the management organization) ... undertakes to perform work and (or) provide services for the management of an apartment building, provide services and perform work on the proper maintenance and repair of common property in such a house, provide utilities to the owners of premises in such a house ...” Part 1 of Article 135 of the Housing Code of the Russian Federation establishes: “A homeowners’ association is recognized as a type of real estate owner’s association, which is an association of owners of premises in an apartment building for the joint management of common property in an apartment building or ... the property of the owners of premises in several apartment buildings or the property of the owners of several residential buildings, ... providing utility services to persons using premises in these apartment buildings or these residential buildings in accordance with this Code...”. Part 12 of Article 161 of the Housing Code of the Russian Federation: “Managing organizations, homeowners’ associations or housing cooperatives or other specialized consumer cooperatives that manage apartment buildings do not have the right to refuse to conclude, in accordance with the rules specified in Part 1 of Article 157 of this Code, contracts with resource suppliers organizations ..."
From a comprehensive assessment of the above provisions, it follows that management companies/homeowners associations managing apartment buildings are obliged to provide public services (to be the provider of such services), for which they must enter into appropriate resource supply agreements.
Analysis of the situation
Based on the assessment of the above standards and the opinion of the Ministry of Construction, several points should be noted.
The Ministry of Construction clearly defends the right of the RSO to be the executor of utility services in cases where the building is managed by a UU or HOA, despite the fact that the norms of the Housing Code of the Russian Federation directly indicate the obligation of the UU and HOA to provide utilities to consumers (that is, to be the executor of utilities) and to enter into contracts for these purposes resource supply agreements. Directive of the Ministry of Construction “At the same time, it is necessary to pay attention that parts 5, 6, 6.3, 7 and 7.1 of Article 155 of the Housing Code of the Russian Federation apply to cases when the management organization managing an apartment building, a partnership or cooperative has concluded resource supply agreements in the prescribed manner with the relevant RSO for the purpose of providing utility services. The provisions of parts 5, 6, 7, 6.3 and 7.1 of Article 155 of the Housing Code of the Russian Federation do not apply in cases where the executor of utilities is the RSO” seems doubtful, since the listed norms establish the person in whose favor the payment for utilities is made, depending on the method of managing the apartment building, and not at all depending on the presence/absence of resource supply agreements with the RSO.
The current legislation of the Russian Federation does not provide for the right of refusal of management and homeowners associations to enter into resource supply agreements , however, it is precisely by the criterion of the presence/absence of such an agreement that the Ministry of Construction believes it is correct to determine who is the provider of public services. RSO, unlike the management company and the HOA, has the right to refuse to conclude a resource supply agreement on the grounds provided for in paragraph 13 of Rules 124, including (as amended by the RF PP dated December 26, 2016 N1498 ) “the presence of the provisions provided for in part 17 of article 12 of the Federal Law of 29 June 2015 N 176-FZ resource supply agreement; the presence of a decision provided for in Part 18 of Article 12 of the said Federal Law on maintaining the procedure for the provision of utility services and payments for utility services.” In addition, RSO has the right to terminate an already existing resource supply agreement on the basis of paragraph 30 of Rule 124 “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 settlement period".
It is not entirely clear how the norms of Rule 124 (and Federal Law 176-FZ ) in the considered part correlate with the norms of the Housing Code of the Russian Federation - it seems that there are contradictions, since the Housing Code of the Russian Federation directly obliges management entities and homeowners associations to enter into resource supply agreements and provide utility services to consumers, without reservations about the situations provided for by the above standards.
Let's try not to focus on doubts about the correctness of the current standards, and list the cases when the RSO is the executor of the CU, while managing the house of the management company/homeowners association:
1. MKD, the number of apartments in which is more than 16, was managed directly, the providers of utility services were the corresponding RSO. federal law dated July 21, 2014 N255-FZ came into force , according to which the owners of apartment buildings, which include more than 16 apartments, lost the right to manage the house directly and were required to choose the method of managing the management unit or the HOA. The owners did not comply with the new requirement of the Housing Code of the Russian Federation, and no one paid attention to this. On June 30, 2015, Federal Law dated June 29, 2015 N176-FZ came into force, according to Part 18 of Article 12 of which owners, in the event of a decision to change the management method or choose a management organization, received the right to decide to maintain the procedure for providing corporate assets and payments for corporate assets. . The owners exercised this right by choosing the method of managing the UO or HOA and maintaining “direct contracts” with the RSO. Thus, the violation of federal legislation (failure to comply with the requirement to choose a management method for the management organization or HOA) led to a situation in which the house is managed by the management organization or HOA, and the provider of utilities is the RSO.
2. MKD, the number of apartments in which is more than 16, was managed directly, the providers of utility services were the corresponding RSO. On September 1, 2014, federal law dated July 21, 2014 N255-FZ came into force, according to which the owners of apartment buildings, which include more than 16 apartments, lost the right to manage the house directly and were required to choose the method of managing the management unit or the HOA. The owners, in pursuance of the new norm of the Housing Code of the Russian Federation, held a general meeting and chose the method of managing the management unit or the HOA, but the specified person (the management organization or the HOA) avoided concluding resource supply agreements, directly violating the requirements of housing legislation. On June 30, 2015, Federal Law dated June 29, 2015 N176-FZ came into force, according to Part 17 of Article 12 of which agreements concluded before the entry into force of this law between the owners and the RSO continued to be valid. Consequently, in this case, there was a violation of federal legislation (failure to comply with the requirement for the management company/homeowners association to conclude resource supply agreements and agreements for the provision of utility services to consumers), which led to a situation where the house is managed by the management organization or homeowners association, and the contractor for the provision of utility services is the RSO.
3. The management company or HOA manages the house without concluding resource supply contracts, directly violating the requirements of the law, refuses to consider itself a contractor and does not accept payment for utilities (such payment, in violation of the law, is accepted by RSO). After Law 176-FZ came into force, RSOs recognized themselves as executors, since the management company/homeowners association refuses to be a executor. That is, in this case, as in the previous ones, violations of the law led to a situation in which the house is managed by the management company or the HOA, and the executor of the management agreement is the RSO.
4. An apartment building, the number of apartments in which is less than 16, was managed directly; after June 30, 2015, it chose the management method of a management company or a homeowners association and decided to maintain the previously existing procedure for the provision of utilities and payments for utilities. In this case, the MA or HOA manages the house, and the RSO is the executor of the management agreement. There are no such flagrant violations of the law as in the two previous cases.
5. The management company/homeowners association has a debt to the RSO in an amount exceeding the cost of the corresponding utility resource for 3 billing periods (billing months), and this debt is recognized either by the management company/homeowners association itself according to a statement of reconciliation of calculations, or by a court decision. RSO, on the basis of paragraph 30 of Rule 124, unilaterally abandoned the resource supply agreement with the debtor and entered into agreements directly with consumers of utility services.
Additionally, I would like to note that in the letter discussed in this article , the Russian Ministry of Construction explained that the absence of a resource supply agreement between the management organization and the RSO, concluded for the purpose of providing utility services to consumers, cannot be considered a violation of licensing requirements. This position directly contradicts the opinion of the Ministry of Construction itself, which, in a letter dated November 5, 2015 N 35750-OL/04 , indicated that the availability of resource supply agreements is a licensing requirement (we recall that this letter was issued after the entry into force of the federal law dated June 29, 2015 N176-FZ ).
Author: Nifontov D.Yu.
Iku 19minstroy 59zhsk 39mkd 66tszh 67uo 44
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Relationship between the management company and property owners
As in the first case, an agreement is concluded between the two parties, which spells out the rights and obligations of each. Owners of residential premises have the right to:
- receiving utilities in full;
- requirement to check the quality of the resources provided;
- obtaining mandatory information specified in the contract;
- demand for financial compensation for damage caused if utilities were of inadequate quality.
Responsible:
- pay the subscription fee on time;
- report violations in in-house engineering systems;
- use room meters;
- ensure verification of meters and engineering systems.
The performer has several more obligations; we list the most important of them:
- make payments for utilities;
- maintenance of in-house systems;
- sign an agreement with RSO on the purchase of utility resources;
- provide consumers with utility services.
The list can be continued indefinitely, the obligations to the owners are great and extensive, therefore the demand from the management company will be greater.
