Responsibility of the capital repair fund to the owners

Source: Journal “Housing and communal services: accounting and taxation”

In 2014, in a building managed by the management company, a general meeting of owners of premises in the apartment building was held on issues of major repairs of common property. At this meeting, it was decided to form a capital repair fund in a special account, the owner of which is the regional operator. In the situation described, who should present the owners for payment of contributions for major repairs, draw up payment documents and keep records of the fund?

To answer the question posed, first of all, it is necessary to form an idea of who is obliged to carry out major repairs of apartment buildings and whether the presence of such an obligation is related to the decision of the owners of premises in apartment buildings to choose the method of forming a capital repair fund.

General provisions on the duties of managers

Proper maintenance of common property in an apartment building is one of the key goals of managing an apartment building ( Part 1, Article 161 of the Housing Code of the Russian Federation ). The rules for carrying out activities for managing apartment buildings are approved by Decree of the Government of the Russian Federation dated May 15, 2013 No. 416 . According to clause 4 of these rules, the management of apartment buildings is ensured by the implementation of a number of standards, one of which is the preparation of proposals on the issues of carrying out major repairs (reconstruction) of apartment buildings (see paragraph “ c” ). Based on such proposals, the owners of premises in apartment buildings make decisions on carrying out major repairs of common property ( parts 1 , 2 of article 189 of the Housing Code of the Russian Federation ).
Another management standard formulated in paragraphs. “g” clause 4 of the Rules for the implementation of activities for the management of apartment buildings , is devoted to the organization and implementation of payments for services and work on the maintenance and repair of common property in apartment buildings. This standard implies that the manager’s responsibilities include, but are not limited to:

accrual of mandatory payments and contributions related to the payment of expenses for the maintenance and repair of common property in the apartment building. They are made to the owners of both residential and non-residential premises, since the costs of maintaining common property are borne by the owners of all premises in the apartment building, regardless of their status ( Part 1 of Article 158 of the Housing Code of the Russian Federation );
registration of payment documents and sending them to owners and users of premises in the apartment building;
conducting claims and lawsuits against persons who have not fulfilled the obligation to pay for residential premises and utilities provided for by the housing legislation of the Russian Federation.

Let us remind you that the payment for residential premises for the owner of the premises in an apartment building includes ( Part 2 of Article 154 of the Housing Code of the Russian Federation ):

payment for maintenance and repair of residential premises;
contribution for major repairs.

As for the proper maintenance of common property in the apartment building, it is carried out taking into account the requirements of Part 1.1 of Art. 161 Housing Code of the Russian Federation . This article connects the emergence of specific individuals with the obligation to maintain common property in an apartment building with the choice of how to manage this house. So, by virtue of Part 2.3 of Art. 161 of the Housing Code of the Russian Federation , when managing an apartment building by a management organization, it is she who is responsible to the owners of the premises in the house for the provision of all services and (or) performance of all work that ensures the proper maintenance of the common property in a given house and the quality of which must comply with the requirements of technical regulations and the Rules for the maintenance of common property _ It is important that major repairs, like current ones, are named among the activities that form the concept of “maintenance of common property” (see paragraph “h”, clause 11 of the Rules for the maintenance of common property ).
Let's draw a conclusion. As a general rule, when managing a house, a management company is assigned the following responsibilities:

for planning and provision of services and performance of work related to the overhaul of common property in the apartment building;
on processing payment documents and sending them to owners and users of premises in apartment buildings, as well as on conducting claims and lawsuits against debtors.

How to create a capital repair fund

The legislation allows the formation of a capital repair fund in several ways. The first is the opening of a special account and collection of funds by the authorized owner. This could be a management company or an HOA. The owner takes full responsibility for carrying out major repairs and spending money on purpose. The second way is cooperation with a regional operator, which takes on all these functions.

The regional operator is a non-profit organization that is endowed with all necessary powers by the state. The owners of the premises only transfer funds to a special account of the operator. And the organization undertakes to carry out ongoing major repairs. The cooperation of residents with the regional operator gives them the opportunity to exercise their right to control the repairs.

In addition, owners are given the right to demand fulfillment of obligations within the specified time frame. As for the money that the organization accumulates in its account, it can only be spent on repair services, preparation of project documentation, etc.

The initial choice of the method of forming the fund is within the competence of the residents of the house. To do this, the management company or HOA gathers all the owners of the premises and puts on the agenda the issue of carrying out major repairs. Next comes the conclusion of an agreement with the regional operator. It is considered concluded when residents pay a contribution to his account, as well as when executed in writing.

The legislator has defined a standard agreement that regional operators can conclude with residents. An authorized person appointed by the general meeting has the right to sign the agreement. This may require a notarized power of attorney. The agreement comes into force upon its signing. If the owners do not want to enter into an agreement, the regional operator can go to court with a corresponding claim.

Special provisions on the duties of managers

Next, it is necessary to figure out whether the responsibilities of the management company, established in the general case, are adjusted depending on the way in which the owners of premises in apartment buildings form a capital repair fund.
According to Part 2 of Art. 158 of the Housing Code of the Russian Federation, expenses for major repairs of common property in apartment buildings are financed from the capital repair fund and other sources not prohibited by law. The fund itself is replenished from contributions from owners and others listed in Part 1 of Art. 170 Housing Code of the Russian Federation of receipts.

The specifics of paying contributions for major repairs are established in Art. 171 of the Housing Code of the Russian Federation , however, they are definitely formulated only in relation to the method of forming a fund on the account of a regional operator.

Advantages of a regional operator

If an apartment building is managed, for example, by a HOA, then it may be more convenient for the owners of the premises to independently keep under control all organizational issues regarding repairs. On the other hand, this is a great responsibility, and not only financial. Therefore, many choose a regional operator. This method of forming a fund has many advantages:

even if there is a lack of funds, the planned overhaul will be carried out by the regional operator;
all funds collected by residents go only to repair services, even the state takes over the maintenance of the organization;
premises owners can decide to carry out major repairs ahead of schedule, and the regional operator cannot refuse them;
the entire organization of repairs also falls on the regional operator, including the search for a contractor and the purchase of materials;
the organization assumes full responsibility for the targeted expenditure of money and the provision of repair services;
the regional operator compensates the owners of the premises for all losses in accordance with the concluded agreement.

This method of forming a fund for major repairs must be used if the building is very old, since otherwise you will have to save for repairs for a long time. And also if the residents of the house do not take an active part in its management.

The fund is formed on the account of the regional operator

In this situation, owners of premises in apartment buildings pay contributions for major repairs on the basis of payment documents submitted by the regional operator, unless otherwise established by the law of the subject of the Russian Federation. Accounting for funds (including in the context of contribution payers) is also carried out by the operator ( Part 1 of Article 183 of the Housing Code of the Russian Federation ), since payments from the owners of premises forming the capital repair fund on the account of the regional operator form the property of the latter ( Clause 2 of Part 1 of Art. 179 Housing Code of the Russian Federation ). At the same time, the operator has an obligation to the owners of the premises in the apartment building to ensure that major repairs of the common property in their house are carried out ( Article 182 of the Housing Code of the Russian Federation ). As part of the performance of this responsibility, the regional operator:

prepares and sends to owners proposals on the start date of major repairs, the required list and volume of services and (or) work, their cost, the procedure and sources of financing of the said work (services), etc.;
attracts contractors and monitors the progress of work;
carries out acceptance of completed work, etc.

Thus, in the case of the formation of a capital repair fund on the account of a regional operator, the responsibility for processing payment documents (in terms of contributions for capital repairs) and sending them to the owners and users of premises in the apartment building rests with the regional operator, unless otherwise established by the constituent entity of the Russian Federation. At the same time, the responsibility to plan and carry out major repairs in the house is also assigned to the regional operator. According to the logic of the law, the regional operator fulfills its obligations without the participation of the management company, thus, a number of issues “historically” subordinate to managers are redistributed to the regional operator.

Official website of the Supreme Court of the Russian Federation

The customer of a major renovation of an apartment building is responsible to the owners for the quality of work and is obliged to compensate for losses in the event of damage to property, the Supreme Court of the Russian Federation indicated. He also noted that the amount of compensation in such cases cannot be limited to the amount of contributions for major repairs paid by one tenant.

The essence of the dispute

A legal conflict arose in the case of a resident of Ryazan, whose apartment was flooded twice during rainfall due to roofing work as part of a major renovation.
The property owner filed a claim against the fund for capital repairs of apartment buildings for damages for damaged property. Commission acts confirmed the connection between the flooding of the apartment and the renovation work. The expert estimated the cost of repair and restoration work in the plaintiff’s apartment at 68 thousand 394 rubles. The applicant also asked to be compensated for the examination performed, which cost her 8 thousand rubles. The defendant voluntarily refused to pay these expenses, justifying his position by the fact that both floods of the apartment occurred through the fault of the contractor carrying out the repairs, and therefore it must compensate for the damage. Then the woman filed a claim with the Oktyabrsky Court of Ryazan, and it satisfied the applicant’s demands. In resolving the dispute, the court of first instance came to the conclusion that it was the regional operator, the capital repair fund for residential apartment buildings, that was responsible for the consequences of non-fulfillment or poorly fulfilled obligations to carry out major repairs, which attracted contractors to work. In connection with this, the court recovered 68 thousand 394 rubles from the defendant to compensate for the material damage caused by the contractor.

However, the appellate court changed this decision. According to the appeal, in the case it is necessary to apply Part 5 of Article 178 and Article 188 of the Housing Code of the Russian Federation, which establish that the amount of damages recovered for the actions of the regional operator is determined by the amount of contributions made for major repairs. Therefore, the court decided, damages should be recovered in favor of the plaintiff only in the amount that she paid for major repairs. In this regard, he reduced the amount of compensation to the owner by almost 12.5 times - to 5.5 thousand rubles.

But the judicial panel for civil cases of the Supreme Court of the Russian Federation did not agree with this decision and overturned it, leaving the decision of the trial court in force.

Position of the Armed Forces

“The regional operator, as the customer for major repairs of common property in an apartment building, is liable to the owners of the premises in such a building for the consequences of failure to fulfill or improper fulfillment of obligations by contractors engaged by it in accordance with the principle of full compensation for losses.
The liability of a regional operator for causing losses to the owner of premises in an apartment building as a result of non-fulfillment or improper fulfillment of his obligations is not limited,” the RF Armed Forces indicate.

He recalls that the legal regulation of the activities of regional operators to ensure the overhaul of common property in apartment buildings is established by the Housing Code of the Russian Federation, and Article 180 of this code defines its functions and regulates the responsibilities of the regional operator:

— engaging contractors to provide services and perform major repairs and concluding relevant agreements with them on its own behalf;

— control of the quality and timing of services provided by contractors and their compliance with the requirements of project documentation;

— acceptance of services provided and work performed.

Indeed, liability for non-fulfillment or improper fulfillment by the regional operator of its obligations to the owners is established by part 5 of article 178 and part 1 of article 188 of the Housing Code of the Russian Federation, according to which the amount of compensated losses depends on the amount of contributions paid for major repairs or are subject to compensation in accordance with civil law, the Supreme Court points out .

At the same time, Part 6 of Article 182 of the Housing Code of the Russian Federation establishes the responsibility of the regional operator for the actions of the contractor it hired for major repairs.

In accordance with the provisions of this norm, the regional operator is responsible to apartment owners for the consequences of poor-quality repairs or lack thereof, he reminds.

“From the above rules of law it follows that housing legislation establishes different types of responsibility of the regional operator to the owners of premises in an apartment building: liability for failure to fulfill its obligations (part 5 of article 178, part 1 of article 188 of the Housing Code of the Russian Federation), in which the regional operator is responsible for its own wrongful conduct as the party in breach of the obligation. And liability for the consequences of non-fulfillment or improper fulfillment of obligations to carry out major repairs by contractors engaged by the regional operator (Part 6 of Article 182 of the RF Housing Code), in which, by virtue of direct instructions in the law, the responsibility of the regional operator arises for the actions (inaction) of third parties other than a party to the obligation arising between the regional operator and the owners of the premises when organizing major repairs of the common property of the house,” the definition says.

Thus, the Supreme Court believes, the appeal erroneously interpreted the norms of substantive law, applying in the controversial case part 5 of article 178 and part 1 of article 188 of the RF Housing Code.

“As for determining the scope of liability when applying Part 6 of Article 182 of the RF LC to disputed legal relations, in this case it is necessary to proceed from the general rules of the debtor’s liability for obligations established by Chapter 25 of the RF Civil Code.

According to Articles 15, 393, 400 of the Civil Code of the Russian Federation, losses must be compensated in full if the right to full compensation for losses is not limited by law or contract (limited liability),” notes the highest authority.

She explains that part 6 of Article 182 of the Housing Code of the Russian Federation does not establish a limitation on the liability of the regional operator for carrying out unsuitable repairs, therefore he is responsible for the actions of the contractor to the owners in accordance with the principle of full compensation for losses.

Impact of contribution amount

When overturning the decision of the appellate instance, the Supreme Court also drew attention to its incorrect interpretation and application of the provisions of Part 5 of Article 178 of the RF Housing Code regarding the possibility of recovering damages from the regional operator only within the limits of the contributions made by the plaintiff for major repairs.
This legal norm establishes that damage caused to owners of premises in apartment buildings as a result of failure or improper fulfillment by the regional operator of its obligations is subject to compensation in the amount of contributions made for major repairs in accordance with civil law.

The highest authority notes that the article does not indicate that the liability of the regional operator is limited to contributions made for major repairs of only one owner.

She refers to Part 1 of Article 179 of the Housing Code of the Russian Federation, according to which the property of the regional operator is formed at the expense of:

1) contributions of the founder;

2) payments by owners of premises in apartment buildings that form capital repair funds on the account of the regional operator;

3) other sources not prohibited by law.

That is, Part 5 of Article 178 of the RF Housing Code specifies the type of property from which losses will be compensated, since it is formed from various sources. However, we are talking about contributions paid by all residents of the house, and not just one owner, emphasizes the RF Armed Forces.

“Since the property of the regional operator is formed from various sources, part 5 of Article 178 of the Housing Code of the Russian Federation specifies the type of property (contributions made for capital repairs, that is, payments of all owners of premises in apartment buildings to the capital repair fund), at the expense and within which the responsibility of the regional operator is fulfilled operator for compensation of losses in case of failure to fulfill its obligations to the owners.

This approach is consistent with the principles underlying the functioning of the centralized system of accumulating savings for major repairs of common property in apartment buildings, designed to ensure the joint participation of all owners of the premises of these buildings in creating the financial basis for major repairs, and not reserving funds for each specific the owner separately,” notes the highest authority.

Alice Fox

Responsibilities of the regional operator

All activities of this organization are regulated by housing legislation and regulations of local authorities. The regional operator not only collects money for major repairs. He is also obliged to keep special records of these funds. In this case, not only the total amount received from all residents is taken into account. The operator keeps records for each owner. This is done primarily in order to identify debtors. By the way, it will not be possible not to hand over the money, since they can be recovered through the court.

The amount of fundraising is determined in accordance with the regional repair program, which takes into account the technical condition of the house, the timing and indicates a list of repair work.

The regional operator can add the missing part of the money from the budget or from the transferred funds of the owners of other houses. Six months before the start of repairs, the regional operator is obliged to provide residents with all the necessary information, including the cost of work, timing, etc. Owners of premises are responsible for making a decision on carrying out repair work within 3 months. If the decision is not made by the residents, the local government does so. Based on the decision, the regional operator begins preparations for repairs.

Next, the organization begins searching for contractors, conducting a thorough selection. It is the regional operator who enters into an agreement with them and controls the repairs. Moreover, this control is also exercised by owners and local authorities. It is worth noting that owners are given the opportunity to request a report on the expenditure of money at any time.