Is the resource supplying organization a utility service provider? Managing organization

In relations for the provision of public services, in addition to consumers and suppliers of public resources, there is someone - a performer.

When the owners of the premises in the house choose the direct form of management, this person remains unknown. Let us consider whether the resource supplying organization (RSO), with which the owners of the premises have signed direct contracts for the acquisition of communal resources (contracts for the maintenance of intra-house networks are concluded by the owners with other organizations), in the case of choosing direct management, is a utility service provider with all the ensuing consequences.

Reading the legislation

As follows from clause 3 of the Rules, utility service providers are recognized as legal entities regardless of their organizational and legal form or individual entrepreneurs that meet the following requirements:

Produce or purchase a utility resource;

Responsible for the maintenance of in-house engineering networks, through which they provide public utilities consumers;

Provide utility services to consumers.

A literal interpretation of this definition allows us to assert that a legal entity and an individual entrepreneur cannot be considered as utility service providers if at least one of the above elements is absent in their activities. The contractor of public services, depending on the method of managing the house chosen by the owners, can be:

managing organizations;

Homeowners associations, housing cooperatives, LCDs and other specialized consumer cooperatives;

And with direct management - another organization that produces or acquires communal resources.

With direct management, the RSO often only supplies a communal resource to the border of the networks that are part of the common property, but is not responsible for servicing intra-house engineering networks and does not provide utility services to consumers. This provision is enshrined in, in accordance with which, with direct management, the owners enter into an agreement on the acquisition of communal resources with the corresponding RSO. At the same time, maintenance of intra-house engineering systems is carried out by persons involved under an agreement by the owners of premises in an apartment building, or by the owners themselves, unless otherwise provided by the agreement with the RSO. Thus, in strict accordance with the legislation of the Republic of North Ossetia, with which the owners, who directly manage the house, have entered into contracts for the purchase of communal resources, it is not a utility service provider.

This statement does not raise doubts in terms of imposing on the RSO the responsibility for the maintenance of intra-house engineering networks. However, the question of the fulfillment of the RSO of other duties assigned to Rulesprovision of public services on the utility service provider, remains open.

Interpreting the law

Extend their action to the relationship between performers and consumers of public services ( item 1). However, due to their item 8 the terms of the agreement on the acquisition of communal resources and water disposal (reception (discharge) of wastewater), concluded with the RSO in order to provide the consumer with communal services, should not contradict the rules themselves and other regulatory legal acts RF. It is worth paying attention to the fact that “should not contradict” in the context of the mentioned norm does not mean “should correspond” to them.

Besides, item 7 establishes the limits of liability of RSO under the contract with consumers. So, RSO is responsible for the mode and quality of supply of cold and hot water, electricity, gas and heat energy, as well as water disposal at the border of networks that are part of the common property of the owners of premises in an apartment building.

Ministry of Regional Development of the Russian Federation Letters No. 29.11.2007 21492-SK / 07 "On the conclusion of contracts between utility service providers and resource supply organizations" And dated 13.02.2007 No. 2479-RM / 07 "On the application of clause 8 of the Rules for the provision of public services" gives a broad interpretation of the said norm, pointing out the need to comply with the terms of contracts with the RSO in terms of:

Rights and obligations of the parties to the contract;

The procedure for the supply of communal resources and water disposal (reception (discharge) of wastewater);

Requirements for the quality of communal resources and water disposal (reception (discharge) of wastewater);

Terms of payment for communal resources and water disposal (reception (discharge) of wastewater);

Liability of the parties to the contract;

Grounds and procedure for suspending or restricting the supply of communal resources.

The main purpose of the broad interpretation is to prevent violation of the rights of consumers who fully fulfill the obligations established by the legislation of the Russian Federation and agreements. It should be noted that in the text Rulesprovision of public services contains contradictions that do not allow them to extend their action exclusively to relations between performers and consumers of public services.

For example, clause 9 of the Rules for the provision of public services stipulates that an uninterrupted supply to the dwelling must be ensured communal resources proper quality. However, this paragraph is in conflict with the entire concept of the document under consideration. Thus, the performer provides the consumer public utilities . For these purposes, RSO supplies communal resource to the border of networks that are part of the common property, but not to every residential building (before entering the house). RSO does not have the right to supply a communal resource through intra-house networks, since they are part of the common property. The duties of the RSO are thus limited to uninterrupted supply utility resources before entering the house. It seems that this provision should be reflected in the current legislation.

One more example - sec. X Rules for the provision of public services governs the suspension and limitation of the provision utilities . At the same time, in 82 for the first time mention is made of the suspension (or restriction) of filing communal resources . IN paragraphs 80, 81 we are talking only for utilities.

The examples given show that the provisions Rules for the provision of public services relate both to communal services and, accordingly, are related to the activities of the contractor, and to the activities of the RSO for the supply of communal resources. In this regard, the position of the Ministry of Regional Development of the Russian Federation on a broad interpretation item 8 document under consideration seems appropriate.

There is no doubt about the validity of this opinion. The fact is that what rights and obligations would not be endowed Rulesprovision of public services performers, the actual implementation of these rights and obligations directly depends on the RSO. In practice, homeowners associations and managing organizations are just intermediaries between citizens and RNOs. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter No. 13.02.2007 2479-PM/07, the contractor of utility services has the right to demand the establishment of parity corresponding Rules for the provision of public services terms of contracts with RSO by agreement of the parties, and in the absence of such an agreement - in judicial order. It seems that the owners who directly build relations with the RSO (with a direct form of management), all the more have the right to demand that the obligations of the executor be performed by the RSO.

Nevertheless, we have to admit that in practice the clarifications of the Ministry of Regional Development of the Russian Federation are not always implemented. This is facilitated by both objective and subjective reasons. The former include the dependence of the RNO on energy legislation (for example, the procedure for suspending or restricting the supply of electricity, established by the Rules for the Functioning of Retail Electricity Markets in the Transition Period of Reforming the Electricity Industry, does not correspond to the procedure provided for). Subjectivism is manifested in the application of the current legislation by the judiciary.

We turn to the arbitrators

A generalization of judicial practice leads to the conclusion that the owners of premises in apartment buildings do not at all apply for judicial protection and do not ask to assign the duties of a utility service provider to the RSO. They simply regularly pay the bills issued to them by these organizations.

Nevertheless, the position of the arbitrators regarding the problem under consideration can be seen in the disputes between the RNO and Rospotrebnadzor. Cases like this are just the case when government agency (federal Service on supervision in the field of consumer protection and human welfare) may apply to the court for the protection of an indefinite number of persons (residents of a particular house). This is of particular relevance precisely in the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court in the claims of the RNO, which were brought to administrative responsibility for violating the requirements of legislation in the field of consumer protection.

So, Decree No. 04.10.2007 F08-6502/2007 FAS NKR supported the local government and the department of Rospotrebnadzor, who refused the WSS organization to agree on the water supply regime according to the schedule. Water supply and sewerage organizations have the right to introduce a water supply schedule on the basis of clause 85 of the Rules for the use of public water supply and sewerage systems in the Russian Federation. However, as the arbitrators pointed out, by virtue of item 3 specified document its norms do not apply to relations between WSS organizations and citizens, relations between which are regulated Rules for the provision of public services. In turn, the provisions clause 8 of the Rules for the provision of public servicesaimed at ensuring compliance with the terms of contracts for the acquisition of communal resources and wastewater disposal, concluded by the resource supplying organization with the contractor of public services, and in the absence of the contractor - by the owners of premises in an apartment building (in the case of direct management of the house) or owners of residential buildings. In this regard, an enterprise that is a RSO, in relation to the water supply of citizens, is obliged to comply Rules for the provision of public services.

Another example I would like to give is Decree of the FAS SZO dated 05.11.2008 No. А66-2701/2008. In it, the court confirmed the validity of bringing the RSO to administrative responsibility for paragraph 1 of Art. 14.8 Administrative Code of the Russian Federation for violating the consumer's right to receive reliable information about the service, the contractor. The arbitrators found out that the company, through its heating networks, supplied to apartment buildings thermal energy and on its own behalf issued receipts for payment for services rendered. Therefore, it is she is a person selling utility services to consumers, regardless of whether it is a provider of utility services or a resource supply organization. For application purposes Art. 8, 11 of the Law of the Russian Federation dated 07.02.1992 No. 2300-1 "On consumer protection" it is the RSO that is the executor, therefore, it is recognized as the subject of liability.

So, the fundamental difference between the utility service provider and the RSO is the fulfillment or non-fulfillment of the obligation to maintain intra-house engineering networks. Otherwise, the RSO is not exempt from the obligation to comply with the requirements Rules for the provision of public services. Doubts that arise in practice can be explained primarily by imperfection legislative framework. The solution to the existing problem is seen in the introduction of amendments to the regulatory legal acts that regulate the relationship between contractors and consumers of public services. The publication of fundamentally new acts capable of regulating relations with the North Ossetia is not ruled out.

In relations for the provision of public services, in addition to consumers and suppliers of public resources, there is someone - a performer.

Reading the legislation

As follows from clause 3 of the Rules, utility service providers are recognized as legal entities, regardless of their organizational and legal form, or individual entrepreneurs that meet the following requirements:

Produce or purchase a utility resource;

Responsible for the maintenance of intra-house engineering networks, through which they provide utility services to consumers;

Provide utility services to consumers.

managing organizations;

Homeowners associations, housing cooperatives, LCDs and other specialized consumer cooperatives;

And with direct management - another organization that produces or acquires communal resources.

This statement does not raise doubts in terms of imposing on the RSO the responsibility for the maintenance of intra-house engineering networks. However, the question of the fulfillment of the RSO of other duties assigned to Rules provision of public services on the utility service provider, remains open.

Interpreting the law

Extend their action to the relationship between performers and consumers of public services ( item 1). However, due to their item 8 the terms of the agreement on the acquisition of communal resources and water disposal (reception (discharge) of wastewater), concluded with the RSO in order to provide the consumer with utility services, should not contradict the rules themselves and other regulatory legal acts of the Russian Federation. It is worth paying attention to the fact that “should not contradict” in the context of the mentioned norm does not mean “should correspond” to them.

Besides, item 7 establishes the limits of liability of RSO under the contract with consumers. Thus, RNO is responsible for the mode and quality of supply of cold and hot water, electricity, gas and heat, as well as water disposal at the border of networks that are part of the common property of the owners of premises in an apartment building.

Ministry of Regional Development of the Russian Federation Letters No. 29.11.2007? 21492?SK / 07 "On the conclusion of contracts between utility service providers and resource supply organizations" And dated 13.02.2007 No.? 2479?RM / 07 "On the application of clause 8 of the Rules for the provision of public services" gives a broad interpretation of the said norm, pointing out the need to comply with the terms of contracts with the RSO in terms of:

Rights and obligations of the parties to the contract;

The procedure for the supply of communal resources and water disposal (reception (discharge) of wastewater);

Requirements for the quality of communal resources and water disposal (reception (discharge) of wastewater);

Terms of payment for communal resources and water disposal (reception (discharge) of wastewater);

Liability of the parties to the contract;

Grounds and procedure for suspending or restricting the supply of communal resources.

The main purpose of the broad interpretation is to prevent violation of the rights of consumers who fully fulfill the obligations established by the legislation of the Russian Federation and agreements. It should be noted that in the text Rules provision of public services contains contradictions that do not allow them to extend their action exclusively to relations between performers and consumers of public services.

For example, clause 9 of the Rules for the provision of public services stipulates that an uninterrupted supply to the dwelling must be ensured communal resources proper quality. However, this paragraph is in conflict with the entire concept of the document under consideration. Thus, the performer provides the consumer public utilities . For these purposes, RSO supplies communal resource to the border of networks that are part of the common property, but not to every residential building (before entering the house). RSO does not have the right to supply a communal resource through intra-house networks, since they are part of the common property. The duties of the RSO, therefore, are limited to the uninterrupted supply of communal resources before entering the house. It seems that this provision should be reflected in the current legislation.

There is no doubt about the validity of this opinion. The fact is that what rights and obligations would not be endowed Rules provision of public services performers, the actual implementation of these rights and obligations directly depends on the RSO. In practice, homeowners associations and managing organizations are just intermediaries between citizens and RNOs. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter No. 13.02.2007? 2479?RM/07, the contractor of utility services has the right to demand the establishment of parity corresponding Rules for the provision of public services terms of contracts with RSO by agreement of the parties, and in the absence of such an agreement - in court. It seems that the owners who directly build relations with the RSO (with a direct form of management), all the more have the right to demand that the obligations of the executor be performed by the RSO.

We turn to the arbitrators

Nevertheless, the position of the arbitrators regarding the problem under consideration can be seen in the disputes between the RNO and Rospotrebnadzor. Such cases are just the case when a state body (the Federal Service for Supervision of Consumer Rights Protection and Human Welfare) can apply to the court for the protection of an indefinite circle of persons (residents of a particular house). This is of particular relevance precisely in the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court in the claims of the RNO, which were brought to administrative responsibility for violating the requirements of legislation in the field of consumer protection.

So, Decree No. 04.10.2007? F08-6502/2007 FAS NKR supported the local government and the department of Rospotrebnadzor, who refused the WSS organization to agree on the water supply regime according to the schedule. Water supply and sewerage organizations have the right to introduce a water supply schedule on the basis of clause 85 of the Rules for the use of public water supply and sewerage systems in the Russian Federation. However, as the arbitrators pointed out, by virtue of item 3 of this document, its norms do not apply to relations between WSS organizations and citizens, relations between which are regulated Rules for the provision of public services. In turn, the provisions clause 8 of the Rules for the provision of public services aimed at ensuring compliance with the terms of contracts for the acquisition of communal resources and wastewater disposal, concluded by the resource supplying organization with the contractor of public services, and in the absence of the contractor - by the owners of premises in an apartment building (in the case of direct management of the house) or owners of residential buildings. In this regard, an enterprise that is a RSO, in relation to the water supply of citizens, is obliged to comply Rules for the provision of public services.

Another example I would like to give is Decree of the FAS SZO dated 05.11.2008 No.? А66-2701/2008. In it, the court confirmed the validity of bringing the RSO to administrative responsibility for paragraph 1 of Art. 14.8 Administrative Code of the Russian Federation for violating the consumer's right to receive reliable information about the service, the contractor. The arbitrators found out that the company supplied thermal energy to apartment buildings through its heating networks and issued receipts for payment for the services rendered on its own behalf. Therefore, it is she is a person selling utility services to consumers, regardless of whether it is a provider of utility services or a resource supply organization. For application purposes Art. 8, 11 of the Law of the Russian Federation dated 07.02.1992 No.? 2300-1 "On consumer protection" it is the RSO that is the executor, therefore, it is recognized as the subject of liability.

So, the fundamental difference between the utility service provider and the RSO is the fulfillment or non-fulfillment of the obligation to maintain intra-house engineering networks. Otherwise, the RSO is not exempt from the obligation to comply with the requirements Rules for the provision of public services. Doubts that arise in practice can be explained primarily by the imperfection of the legislative framework. The solution to the existing problem is seen in the introduction of amendments to the regulatory legal acts that regulate the relationship between contractors and consumers of public services. The publication of fundamentally new acts capable of regulating relations with the North Ossetia is not ruled out.

Approved by Decree of the Government of the Russian Federation of August 31, 2006 No. 530.

The resource supplying organization is an important participant in the utility services market. The benefits of modern civilization that ensure the comfort of our homes, whether it be water, heat, gas or electrical energy - all this is provided to the inhabitants of the MKD by the RSO. Let us consider the features of the work of managing organizations with resource providers in more detail.

What are RSOs? many this term is unknown, and people mistakenly believe that the representative office of the management company is responsible for supplying heat and water to the houses. Resource-supplying organizations are both producers of the necessary resources and their suppliers. Let's give examples.

The city water utility sends water through pipes to the houses. Accordingly, when opening a tap in our house, we use hot or cold water.
Several companies are responsible for heating during the autumn-winter period. If we consider houses in which there is an individual provision of heat, such buildings have their own boiler houses, heating stations. They can be installed both on the roof and in the yard. If heat energy is supplied to the house by the city, the responsibility of the resource-supplying organization - heating networks - appears.
Electricity is generated by hydroelectric power plants. It all depends on how densely populated the city is.
The supply of the most important resource - gas is the responsibility of the city gas service. But since a significant part of the population uses electric stoves, this category of people does not need blue fuel.

Thus, resource-supplying organizations provide the most important benefits that consumers use every day. Payment for their services is made in accordance with the current prices. The tariffs of resource-supplying organizations for each Russian region are different.

When can a supplier of water, gas, electricity, heat act as a utility service provider (CU)?

Currently, apartment buildings are managed by:

homeowners associations or other cooperative associations;
management companies;
property owners directly.

In the latter case, when one owner acts on behalf of all tenants (it can also be a trustee), the resource supply organization becomes the utility provider. Other situations when the same enterprises act as a CG supplier are as follows:

the owners have not yet decided on the method of management;
the previous management method has ceased to operate, and the new one (UK or HOA) has not yet been selected. In the interval between these events, the RSO turns into a KU executor.

Decree of the Government of the Russian Federation No. 354 lists the rules under which resource-supplying organizations can become utility service providers.

Can a UK be a resource supplying organization?

A management company is a legal entity that operates, manages and maintains residential buildings in accordance with an agreement signed between it and the apartment owners. In other words, the management company acts as an intermediary that accumulates the funds of the owners in order to pay for the services provided by the resource supplying organization.

The management company is the contractor of the CU and the contractor of the users. RSO is a subcontractor on the basis of an agreement concluded between the UK and RSO.

In addition, the management company maintains the common property, draws up a repair plan, conducts it and operates the buildings. Based on the foregoing, a resource supplying organization cannot be a management company, since it has the right to carry out only one type of activity and should not be engaged in the general management of residential facilities.

At the same time, resource-supplying organizations and consumers can pay directly. This does not prevent the management company from performing its functions. A direct contract between the owner and the resource supplying organization for the provision of services is also allowed.

Does the owner have the right to conclude a direct contract with a resource supply organization

According to the plan, consumers will be able to conclude direct contracts with resource supply organizations in 2017. Such agreements will be allowed in some cases.

If the services are used by the owner of a private dwelling.
If the general meeting of tenants chooses the option of direct management. Usually this form is convenient for small houses, the number of apartments in which is less than 16.
If users are owners of non-residential premises in MKD.
If the HOA or the UK will have debts to the RSO, the amount of which will exceed the cost of services for three billing periods.
In the period of time when the contract between the CG executor and consumers ceases to be valid until the new agreement enters into force.

In a number of these situations, the owners of residential facilities have the opportunity to conclude direct contracts and make direct settlements with resource supply organizations.

However, there are both pros and cons to this issue. Here are the main advantages of such a scheme.

There are no expenses for the maintenance of the Criminal Code.
No collective responsibility. The owner, who pays the utility bills in a timely manner, is not affected by the debts of unscrupulous neighbors.
Opportunity to attract contractors for housing maintenance for a short period. Due to this, it is realistic to achieve significant savings, since all companies compete with each other, and therefore strive to offer the most favorable conditions.

Among the disadvantages of concluding direct contracts between resource supplying organizations and users, the following can be noted:

The efficiency of controllability of MKD decreases. To resolve important issues, it will be necessary to hold general meetings, which may not lead to an agreement between all participants.
The impossibility of performing major repairs in the house with the involvement of finance provided by the Housing and Utilities Reform Assistance Fund.

How the management company and resource-supplying organizations interact

Many owners of residential premises in MKD are not aware of the interaction between the management company and the resource supply organization. It is the management company, being a representative of the apartment owners, that concludes an agreement with suppliers for the provision of services. Contracts of this kind necessarily contain an indication of the term and tariffs. These documents should not be confused with those that are drawn up between the tenants and the management company.

There are many advantages in cooperation between the UK and RSO, but there are also disadvantages. Not all homeowners pay utility bills without delay. Since the Criminal Code, representing the owners, prescribes the obligation to timely pay for the consumed resources and other services, in case of non-payment, it is liable.

With an increase in the amounts of outstanding obligations, the resource supplying enterprise has the right to subpoena the management company in court and collect debts from it. Many management companies deal with bailiffs, and later become bankrupt. That is why, being responsible for the entire MKD, the Criminal Code, of course, risks.

What contract to conclude a management company with a resource supply organization

The contracts concluded with the resource supplying organizations of the Criminal Code are different. Enterprises provide each their own services, respectively, and the agreements differ from each other.

Supply contract

The most common type of agreement. It can be concluded, for example, for the provision of electricity. The contract has a standard form and full compliance with the Civil Code of the Russian Federation. The document fully discloses the obligations and rights of the resource supplying organization and the management company, it specifies the terms and quantity of deliveries, issues related to payment and non-fulfillment of financial obligations.

The contract must contain information on the amount of energy supplied to the house per day (on average). Employees of the Criminal Code always have the opportunity to take measurements. In the case of significant differences in indicators from those specified in the contract, we can talk about the conduct of RSO unscrupulous activities.

Contract for services

important type of agreement. As a rule, such agreements are concluded with waste disposal organizations. The document prescribes questions about payment, the rights of participants, indicates the time frame in which garbage collection is expected, approximate cleaning hours and the frequency of its conduct during the week. The agreement can also provide for liability for failure to comply with certain of its clauses.

Work agreement

Another important document is the contract. As an example, consider entrances and houses in general, where from time to time something breaks, there is a need to reconstruct the railings, paint the walls in the entrance, repair the elevator, and clean up the area. All these activities are carried out not by employees of the Criminal Code, but by hired workers for an agreed fee. As for the contract, it primarily denotes the rights of the resource supplying organization and the management company. In addition, the document prescribes the responsibilities of the participants. The issue of payment is also important. labor activity employees.

The contract provides for liability for failure to comply with certain clauses of the agreement. These chapters are importance, as they can affect both the extension of the contract between the management company and the resource supply company, and the termination of cooperation.

Conclusion of agreements with resource-supplying organizations: step-by-step instructions for management companies

Step 1. Exploreofficial website of the resource supplying organization.

Step 2. We prepare a package of documents for transfer to the RSO, which are required to conclude contracts for the supply of utility resources.

If an apartment building was connected (technologically connected) before the Decree of the Government of the Russian Federation dated February 13, 2006 No. 83 “On approval of the Rules for determining and providing technical conditions for connecting a capital construction object to engineering networks and the Rules for connecting a capital construction object” came into force to engineering networks”, the relevant documentation is attached to the offer (application).

Step 3. We apply to the RSO to conclude an agreement for the supply of utility resources.

Exist certain rules, which must be observed when concluding agreements between the Criminal Code, the HOA or housing cooperative with a resource provider. However, they do not determine the method of providing prepared documentation and an offer for concluding agreements for the provision of CG. That is, you have the opportunity to choose a convenient type of submission of documentation (by mail, in person, etc.). To conclude an agreement as quickly as possible, you can come to the RSO. The company's opening hours are indicated on its official website.

Step 4. We are waiting for a response from the RCO

Resource-supplying organizations are obliged within 30 days to agree or refuse to conclude an agreement between the Criminal Code and the RSO on the indicated conditions. The reasons for the negative answer must be stated in the established Rules.

If the documentation provided by you turns out to be incomplete or some papers are incorrectly executed, the resource supplying organization is obliged to inform you in writing. She has five working days to do this from the date of receipt of the offer.

If within 30 days from the date on which the consideration of the submitted documentation was suspended, you do not transfer the missing or correctly executed papers, the RSO has the right to terminate the case on the application and return the documents.

3 tips if you are renewing a contract with a resource supplying organization

Plan ahead for dates

The minutes of the general meeting, the MKD management agreement must contain the dates for the start of activities that are suitable for you. They certainly need to be displayed in documents. Thus, the owners of the premises in the MKD elect a new managing organization, indicating when it needs to start fulfilling its duties. If you can "come home," advise homeowners on optimal numbers.

The document must contain a comparison of at least two dates: the day of the general meeting of homeowners in the MKD and the start of the implementation of the obligations stipulated by the management agreement.

It will be better if you write the following directly in the agreement: “the date of commencement of the fulfillment of obligations under this agreement is “01” _______ 201___”. Further, you will understand why it is more reasonable to indicate the first day of any month.

The supply of the resource cannot be made earlier than the date on which the MC must provide services to users. This is stated in paragraph 19 of Regulation No. 124.

The obligation to provide public services appears in the new Criminal Code starting from the date indicated in the decision of the general meeting in the MKD on the choice of an economic enterprise. The same number must be indicated in the house management contract as the day from which it is supposed to start activities. This procedure for choosing dates is described in paragraph 14 of the Rules for the provision of CG to owners and tenants of apartments. This provision was approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354.

If you do not think over the days of acceptance / transfer of MKD management in advance, you are at significant risk.

Firstly, you can skip the time at which you need to send a request to the supplier. During the period until you submit the documentation, the resource supplier presents invoices for the provided CG to the previous management company. Another option is no charge. Here, concluding a contract with you for the supply of resources, RSO will recalculate and bill you for the missed time.

The Supreme Court of the Russian Federation formed its own opinion on this issue, but not every resource supplying organization takes it into account. The Supreme Court of the Russian Federation noted that when apartment buildings are removed from the management of the company, it is possible, based on this, to terminate obligations under Art. 416 of the Civil Code of the Russian Federation and, as a result, terminate the contract for the supply of services. If there is no agreement with someone who has recently started to manage apartment building(power receiving device), this does not become the basis for imposing the obligation to pay for the utility bill on a person who no longer has a legal and actual connection with these devices.

Secondly, a cash gap is inevitable. For example, it is necessary to conclude a resource supply agreement in accordance with the agreed dates in the middle of the calendar month. How, in such a situation, to find out about the current readings of general house and individual metering devices (ODPU, IPU) for all premises apartment building exactly on this day? If the former managing organization takes the indicators of the ODPU, for example, on July 18, and the recently assumed office on August 2. In this case, the resource supplying organizations are asked to pay for the delta, since during the period of the break, the residents of the MKD continued to use all the CUs. Settlement period for repayment utility bills here becomes calendar month(Clause 37 of Rules No. 354, Clause 79 of the Basic Provisions for the Functioning of Retail Electricity Markets, approved by Decree of the Government of the Russian Federation No. 442 dated 04.05.2012, hereinafter - Basic Provisions No. 442).

It is better to terminate the agreement with the previous business company and conclude an agreement with the next one at the moment when the calendar month ends. So you will avoid discrepancies in the calculations of expenses and incomes of the new and old managing organizations, as well as the likelihood of recalculations between them and the resource supplying enterprise.

Draw up an act of taking evidence on the date of commencement of the fulfillment of the obligations of the new Criminal Code

To carry out recalculations, it is necessary to have an act of taking readings of the ODPU. This rule is not put forward at the legislative level, but in practice this document is necessary. The signing of the act by two parties is required: the transferor and the recipient. He explains who pays for utilities and how much resources have been used.

Suppose the act is drawn up on July 31, 2017. The document indicates the date and testimony of the ODPU. The new management company begins to fulfill its obligations under the management and supply contracts on August 1 of the same year. As a result, payment for all resources consumed up to July 31, 2017 inclusive is the responsibility of the former economic organization, and it is necessary to pay off with the new management company from August 1.

Send the documents to the RSO in a timely manner for the conclusion of the contract

The duties of the new governing organization no later than a week after the contract for the management of an apartment building came into force, but not earlier than 10 working days from the date when the decision was made to select it, include sending an application to the RSO to conclude an agreement for the supply of resources. Together with the offer, the documentation provided for in paragraphs. 6, 7 of Regulation No. 124.

If we consider the issue of providing public services from a legal point of view, in this case it is impossible to change their contractor automatically. But in reality there are other situations. The resource supplying enterprise also looks at the minutes of the general meeting of owners, in particular, the procedure for providing CG and paying for them, which was in force before it was decided to choose a new managing organization, has been retained or changed (Part 18, Article 12 of Federal Law No. 176-FZ).

It also happens that the management company is in no hurry or simply does not have the opportunity to provide the RSO with the documentation in full in accordance with Rules No. situations when the house is managed by a management company or homeowners association. Parts 5, 6, 6.3, 7 and 7.1 of Art. 155 of the Housing Code of the Russian Federation is applied if a business enterprise (HOA or cooperative), which is engaged in an apartment building, has concluded, in accordance with the law, contracts with suppliers of water, gas, heat, and electricity. The application of these provisions is not possible if the resource supplying organization is a utility service provider.

This point of view can be disputed, since all the rules mentioned in it are created by the person who is paid the CHP, depending on the method of managing the apartment building, and not on the presence or absence of supply contracts with the designated persons with the resource supplying organization.

The Supreme Court of the Russian Federation has its own legal position on this matter. It is expressed in the fact that if an organization is endowed with the status of a management company, it automatically becomes a CG executor. And in this case, it is obliged to provide services to the end user and pay for the use of communal resources with the enterprises that supply them.

Expert opinion

The absence of a license from the MA does not entail the termination of previously concluded agreements

Maria Goryacheva,

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

If a company does not have a license, this does not mean that the management contract should unconditionally and automatically terminate. In this case, we are also talking about a contract for the supply of resources. The agreement ceases to be valid if the owners of residential premises in the MKD have abandoned it, have chosen a different method of management or a new management company based on the results open competition. The basis of such conclusions is the provisions of paragraph 3 of Art. 200 RF LC, clause 32 of Regulation No. 124.

Does the resource supplying organization have the right to apply a multiplying factor

It is necessary to reconcile the invoices sent to you by the resource supplying organization with the terms of the contract for the supply of services. Does the contract allow the use of a multiplier? Did you sign an additional agreement? If you gave a negative answer in both the first and second cases, the resource supply company cannot increase the amount of the payment for the reasons described below.

In 2017, in the field of relations between utility providers and management companies, a PC (multiplier factor) appeared. Innovations were reflected in the Rules that are mandatory when signing contracts for the provision of resources in accordance with Decree of the Government of the Russian Federation dated February 14, 2012 No. 124.

The use of a default multiplying factor is unacceptable when paying for CG in accordance with agreements concluded earlier than 2017, according to Art. 422 of the Civil Code of the Russian Federation. This means that the PC usage rule between the utility and you is not retroactive. The condition for applying the multiplying factor when making calculations can be reflected in the contract for the supply of resources only if the parties agree to this.

That is, if you entered into a contract with a resource supplying organization before January 1, 2017, the company has the right to offer you to draw up an additional agreement to the main document or a new wording of certain clauses of the contract. By amending the contract, you thus acknowledge that the multiplier may be used in the calculation.

If you have signed additional agreement, the resource supplying organization will display in the contract necessary information on the application of a multiplying factor for its prolongation. Your contract for the supply of resources indicates the period of its validity, and when you re-register, the calculation scheme will change. This procedure is legal, since the re-signing of the contract will take place already at the moment when the new provisions of the Rules for Concluding Agreements come into force.

Expert opinion

To which utility resources and which PC can apply RSO

Gulnaz Nikitina,

expert of the reference system "Management of an apartment building"

There are two types of settlements for KU, in which resource-supplying organizations have the right to use a multiplying factor. Let's dwell on them in detail.

1. Calculations for heat energy.

The determination of payment for thermal energy is carried out taking into account the heating consumption standard and the total footage of premises in the MKD for residential and non-residential purposes using a multiplying factor. PC is 1.1.

2. Calculations for the KU used in the maintenance of the common house economy of the MKD. In this case, we are talking about resources such as:

cold water supply;
hot water supply;
electricity.

When calculating the cost of CU for the maintenance of common house property, the consumption standards for the corresponding types of resources and a multiplying factor equal to 1.5 are applied.

The resource supplying organization has the right to use a PC in a number of cases. All information about the procedure for using the PC is placed in the table. This is stated in subparagraphs "e", "g" of clause 22 of the Rules for Concluding Contracts.

If there is no common house metering device in an apartment building, some nuances are possible. Resource supply organizations can use a PC when making calculations if it is technically possible to install a meter in the house, but it is not available due to other reasons. If the payment of CU in larger size than required, it is not in your interests, in the survey report it is worth mentioning the technical reasons that do not allow the installation of an ODPU. The procedure for identifying the technical feasibility is determined and formalized on the basis of the order of the Ministry of Regional Development of Russia dated December 29, 2011 No. 627 “On approval of the criteria for the presence (absence) of the technical feasibility of installing individual, common (apartment), collective (common house) metering devices, as well as the form of an inspection certificate for establishing the presence (absence) of the technical feasibility of installing such metering devices and the procedure for filling it out.

This is the provision of subparagraph "e" of paragraph 22 of the Rules for the conclusion of contracts.

Who is responsible if the owners do not pay the resource supplying organization

If the contractor is a management company, it is she who is responsible for payments not made in a timely manner to the supplier. Enterprises providing services cannot make direct claims for the collection of debts from their users, if there is no contract concluded directly with them. In the case of the management company, settlements with resource supply organizations are not carried out for each individual consumer, but for the provided volume of water, gas, electricity, and heat in general for each house.

At the same time, the supplier cannot stop providing the entire house, and therefore it is the responsibility of the management company to collect debts from individual non-payers. If it is not possible to obtain the required amount, the management company must repay the obligations.

The management company needs to take a set of measures to collect debts from the owners of the premises. To solve the tasks, the management company can:

disconnect non-payers from local network;
make an appeal to the court.

At the same time, the management company must take measures to influence debtors solely in accordance with the agreement concluded between it and the residents of the house.

At the same time, the management company can transfer the debts of the owners of residential premises in the house to the agent - the manager who conducts operations on the settlement account of the owners of MKD. When an agreement is concluded with a business organization, such accounts are created. As a rule, they are located in Sberbank.

Since, in fact, the money belongs to the owners of the premises, and not to the management company, the agent does not always repay the debt of this enterprise. All settlements in force with the resource supplying organization must be carried out on certain days of the month specified in the contract. All leftovers financial resources, except for the legal remuneration of the economic enterprise, remain on the account. The management company cannot spend them for purposes not indicated in the terms of the contract. If the MC becomes bankrupt, the collection of debts cannot be directed to this account. Such a scheme operates in the interests of the owners of residential premises. If the management company goes bankrupt, a new management company will start working instead. Another option is the formation of a homeowners' association, which will act as a new manager.

An agreement concluded with an agent may provide for the transfer of debts of the management company to the enterprise supplying resources. Of course, this requires the consent of the homeowners. If this clause is absent in the agreement, the agent has the right to refuse to repay the debts of the Criminal Code. It is also impossible to impose on the agent the obligation to pay debts in a judicial proceeding.

Debts to resource-supplying organizations may cause termination of the contract

Not only the Civil Code of the Russian Federation (clause 1 of article 546 together with clause 3 of article 523) contains a provision on the right of a resource supplying enterprise to refuse to fulfill a contract for the supply of services. This is also stated in Decree of the Government of the Russian Federation dated February 14, 2012 No. 124 “On the rules that are mandatory when concluding contracts for the supply of communal resources for the purposes of rendering communal services”.

Rule No. 124 is a special normative act, regulating the procedure for concluding, fulfilling and terminating an agreement for the supply of resources between the RSO and the UK (HOA and other communities, which are mentioned in Article 161 of the RF LC).

One of the parties may refuse to fulfill the contract for the supply of resources. But for this it is necessary to have certain legal facts.

1. The KU contractor has a debt for a certain type of utility resources in an amount exceeding the amount of this service for three billing months. In addition, confirmation of the existence of these unliquidated obligations is required. Such an argument may be a signed act of reconciliation of mutual settlements or a court decision. But in judicial practice, this document is not considered as unconditional evidence of the existence of a debt. The act of reconciliation of mutual settlements is a weighty argument if there are other grounds: contracts concluded with resource-supplying organizations, acts of transferred water, gas, heat, electricity, invoices for payment, claim correspondence.

The law on resource supplying organizations allows them to withdraw from the contract if:

The Criminal Code, the HOA or another specialized community violated the contract, namely, it owed payment for three billing months;
there is a document confirming the violation: an act of reconciliation or an act of the court.

2. The contract for the supply of resources contains information about the right of counterparties to unilaterally withdraw from it. The implementation of such an action should not conflict with the terms of clause 30 of Rules No. 124. Since the clause in question is of a dispositive nature, that is, it allows the parties to freely dispose of their rights, the parties to the contract for the supply of resources are free to refuse to fulfill it. That is, according to paragraph 30, the resource supplying organization can prescribe in the contract a condition for the unilateral termination of obligations. If nothing is said about such a right or the procedure for refusal is not fully described, as paragraph 30 of Rules No. 124 implies, resource supply organizations have no reason to terminate contracts.

IN this moment operates almost the same arbitrage practice associated with the implementation of RSO unilateral withdrawal from contracts. If the agreement between the resource supplying organization and the management company (HOA, another group) does not contain the terms for the termination of obligations at the initiative of one of the counterparties, it is unlawful to refuse to execute the contract. However, according to some courts, a resource supplying organization can also assert its right to terminate the contract in court (clause 2, article 450 of the Civil Code of the Russian Federation). But in reality, there are practically no cases with a positive outcome for RSO.

Let's take an example. In order to substantiate the notice of refusal to fulfill the terms of the contract unilaterally, the resource supplying organization cited certain provisions of the Civil Code of the Russian Federation and clause 30 of Rule No. 124. The court stated that the agreement on the provision of resources does indeed contain a condition on the supplier’s ability to terminate it and stop supplying heat in two cases: if the consumer repeatedly violated the terms of payment for the resource and if there was a systematic (two billing months) debt on his part. This condition was agreed in the document by the parties. However, the court considered that the procedure for terminating the contract described in its text does not meet the requirements of clause 30 of Rules No. 124 (decision of the Fifteenth Arbitration Court of Appeal of November 29, 2013 No. 15AP-17471 / 2013 in case No. A53-9033 / 2013). The Criminal Code is also vested with the right to apply to the antimonopoly service.

Expert opinion

An example when the actions of the TCO were qualified as an abuse of position

Kirakosyan S. A.,

PhD in Law, Associate Professor of the branch of KubGU (Novorossiysk), independent expert under the Ministry of Justice of Russia for anti-corruption expertise NPA, partner of the company "Estok-Consulting"

The Penza OFAS RF issued a decision dated August 24, 2015 in case No. 2–03/19–2015, according to which it recognized that the heat supply organization (TSO) acted unlawfully. When reviewing the Federal Antimonopoly Service of the Russian Federation in Penza, it was found that the contracts for the supply of electricity between the TSO and the management company, the HOA did not stipulate the conditions under which the supplier of last resort may refuse to fulfill the agreement. In addition, the amount of debt of some management companies and HOAs did not exceed the amount of electricity for three billing months. However, the organization sent notices to the management enterprises and HOA about the refusal of the agreement. Such actions were recognized as unlawful, since the TCO had abused its powers. This was regarded as a violation of Part 1 of Art. 10 of the Competition Law. OFAS according to Rostov region issued a similar decision of December 23, 2015 in case No. 213/02.

Obligations of the resource supplying organization to terminate the contract unilaterally

RSO may unilaterally refuse to comply with the terms of the contract. The order of this procedure is conventionally carried out in several steps.

1. The resource supplying organization is obliged:

inform users (homeowners) about the debt of the management company, HOA or other specialized group for payment of utility bills;
talk about the procedure for switching to the conclusion of direct contracts with consumers for the provision of CG, their obligations to pay for utilities directly to the supplier's cash desks or transfer funds through its paying agents;
invite the owners of residential premises to make a choice in favor of one or another management company or to choose a different method of managing the house (HOA or direct method of management if the building has less than 16 apartments).

There is no single approved form for notifying users. The resource supplying organization determines it at its own discretion. Certainly, the best option will be the placement of a written notice on the information stands in the MKD (namely, in the entrances). Announcements of this kind are often duplicated in local newspapers or on the RSO websites.

Note that notifying users of the withdrawal from the contract is a prerequisite.

2. RSO must provide services to honest payers immediately until the moment when an agreement is concluded with a new CG executor, or when the owners sign an agreement with a resource supplying organization directly (if they prefer a direct method of management).

That is, until the supplier is provided with a document on the choice of another management company, or the method of managing the house changes to an HOA or personal management by the owners, services should be provided to users according to the previous scheme. The basis for this is the contract, which says about the conditions for the provision of communal resources, concluded through conclusive actions. The implicit actions here are the supplier's decision to cancel the contract with the MC and switch to signing direct agreements with CG users.

Since, within the framework of such relations, the resource supplying organization is obliged to provide services to consumers, it is endowed with all the obligations of their executor, which are stated in the Rules for providing CU to owners and users of premises in MKD and residential buildings, approved by Decree of the Government of the Russian Federation dated 06.05.2011 No. 354. That is the management company should not charge a fee for the provision of communal resources during the period of provision of the KU RSO.

Thus, the right to refuse to fulfill the terms of the contract for the supply of water, gas, electricity, heat unilaterally is regarded by some RNOs as an opportunity to simplify the transition to concluding direct contracts with users. Other resource-supplying enterprises attribute this to even greater inconvenience in organizing the collection of data on individual readings of PU, charging, issuing and accepting payments, filing claims and accepting claims. Therefore, even if we edit clause 30 of Rules No. 124 and indicate in it the imperative right of the service provider to refuse to fulfill the terms of the contract in a unilateral format, the problems in the CG provision industry cannot be solved. It remains to count on positive changes in the current year, according to which direct contracts with resource supplying organizations in 2017 will be concluded by users according to a legal scheme. Enterprises for the supply of gas and electricity have been operating according to such schemes for quite a long time.

Any resources that are delivered to your home, namely electricity, water, heat and gas, according to Part 4 of Article 154 of the Housing Code of the Russian Federation, are called utilities. They are produced and provided by various companies, which will be discussed.

Management Company

First, let's deal with the decoding of incomprehensible abbreviations so that there are no difficulties in the future. UK (or MA) stands for management company (organization). In the future, the resource supplying organization will be referred to as RSO.

This is interesting! Since we have touched on two figures, let's talk about the third one. Consumers are residents of apartment buildings or small apartments, or people living in private homes. In simple words, persons for whom these same services are produced.

The management company, on the other hand, maintains, manages and operates the housing stock in connection with an agreement between the property owners and the organization itself, i.e. when we talk about who is the executor of public services, we mean UO. In simple words, it is an intermediary between residents in apartment buildings and a resource supply organization. Sometimes, it is possible to conclude contracts directly between the RSO and the owners, but more on that later. Also, the activities of the management company include the maintenance of the housing stock in the proper form, the timely collection of funds for major repairs.

The concept of a resource supplying organization

RSO for ordinary consumers accounts for the utility producer. Let's take a closer look at their activities. In addition to the utilities indicated above: water supply, heat, electricity and gas supplies; The resource supplying organization is also engaged in the following activities:

elimination of rodents and insects;
waste disposal;
lighting of nearby areas and yards;
installation of public antennas for TVs.

Thus, RSO produces and delivers all possible utilities. By law, their activities are regulated by the Housing Code. Russian Federation.

Relations between RNO and UK

After we have dealt with the abbreviations, and what each of the organizations does, let's look at what interaction takes place between the management company, the RCO and the owners of residential premises. Let's start with two legal entities. They conclude a bilateral contract for the supply of utilities. The resource supplying organization is responsible for the production and delivery of consumer services. In turn, the managing organization is responsible for collecting money from the owners and transferring funds to the RSO. Although the scheme is easy to understand, in practice there are often difficulties due to the lack of transparency in the activities of the housing and communal services.

Relationship between MA and homeowners

As in the first case, an agreement is concluded between the two parties, which spells out the rights and obligations of each. Homeowners and have the right to:

receiving utility services in full;
the requirement to check the quality of the resources provided;
Obtaining mandatory information prescribed in the contract;
the requirement of material compensation for the damage caused, if the utilities were of inadequate quality.

pay the subscription fee in a timely manner;
report violations in intra-house engineering systems;
use room meters;
provide verification of meters and engineering systems.

The contractor, however, has several more obligations, we list the most important of them:

to calculate utility bills;
maintenance of house systems;
sign an agreement with the RNO on the purchase of utility resources;
provide consumers with public services.

The list can be continued indefinitely, the obligations to the owners are large and extensive, and therefore the demand from the MA will be greater.

Relationship between RSO and homeowners

It may seem that there is no interaction between them and everything is extremely simple, but this is not so. If there is a managing organization, the resource supplying organization and the owners are not connected in any way. In rare cases, the RSO can be considered as a provider of public services. This happens when the management of an apartment building is carried out in these ways:

with the help of the UK;
with the help of a cooperative association;
directly by homeowners.

These are the three most popular options when an energy supply company becomes a utility contractor. To know more detailed information, you should refer to the 354th resolution of the Russian Federation. It may seem that if the supplying organization is engaged in the provision of services and the collection of payments, then the management company is not needed at all and you can do without it. But this is not always only a positive moment. Let's look at the advantages and disadvantages of such a situation. First, let's touch on the "pluses" of direct contracts:

no expenses for the maintenance of the MA;
owners will not suffer because of neighbors who do not pay their bills on time;

The main "cons" include:

will have to pay for the provision of services in different places, this is not always convenient;
difficulty in recalculation.

As we can see, not everything is so clear when concluding an agreement on resource supply directly. Residents of each house choose the method of management at their own peril and risk, based on what suits them best.

If we are talking about the conclusion of an agreement between the RSO and legal entities for the provision of public services to organizations, then everything depends on regional legislation. Most often, contracts are concluded directly and housing and communal services are not involved in this chain.

Obligation of the MA under direct contracts

The management company continues to be responsible for ensuring that the engineering in-house systems for uninterrupted operation. They also accept applications from the owners of residential premises about the work of inadequate quality. The company provides interaction between RSO and property owners.

Responsibility for the quality of the resources provided is shared along the border of the house. If violations in the work of utilities occurred before they entered the housing stock, then the recalculation is carried out by the RNO. In case of non-compliance with quality in intra-house engineering systems, material compensation is paid by the Criminal Code.

Conclusion

Now let's sum it up so that no one gets confused. Deciphering RSO and UK - resource supplying organization and management company, respectively.

The first is engaged in the fact that it produces and transports them to the housing stock. The second provides timely payment and maintenance of apartment buildings.

Important! The contractor for the resource supply is the UO, in some cases it is possible to conclude an agreement for the supply of utilities with the RSO directly. Legal entities use this method most often.

The topic of public services is vast and immense. Well, if you found the answers to your questions.