Every day we receive dozens of questions from our readers. We try to answer everything: personally, in the comments, or make videos if a detailed answer is required. Find out what issues worried your colleagues during the summer months and read our comments.
On the new procedure for the exchange of information between the management authority and the distribution network of electricity
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Installation and operation of smart metering devices
From July 1, 2020, electricity suppliers began installing intelligent resource consumption metering systems in multi-apartment and individual residential buildings. Such devices automatically transmit readings and limit the supply of electricity to debtors.
We were asked to clarify who will purchase such smart meters and is there a deadline for completing the replacement of PUs in the old housing stock?
The costs of purchasing and replacing individual counting devices will be included in the tariff. And the PUs in old houses will be replaced as the already installed PUs fail and the verification intervals expire.
Common house metering devices (ODPU)
First of all, problems arise with common house heat metering devices. Often, owners pay for expensive metering devices, and they have to pay for heating not according to real consumption (which should be determined by these same general household metering devices), but according to conditional standard indicators (standards).
The problem of common house metering devices will affect all owners of apartments in apartment buildings, because the law obliges the owners to install common house metering devices (CDMU) for communal resources (Article 13 of the Federal Law No. 261 of November 23, 2009 “On energy saving and increasing energy efficiency”). Some houses are already equipped with collective meters, but many still have to install them. In this regard, many managed to receive payment documents “for communal apartments” with an increased amount due to the new line “fee for the installation of common house metering devices.” The cost of the innovation turned out to be quite significant. Using simple mathematics, we can calculate that collective metering devices turn out to be “golden” for the owners. The problem is especially acute with the thermal power supply unit. As mentioned above, owners often bear the burden of expenses both for the common house metering devices themselves and for their installation, but they still have to pay not according to their readings, but according to standards, often inflated. During the warm autumn months, meters can really help reduce your heating bills. Residents of Khimki near Moscow have calculated that in some houses, in just one heating season, communal metering devices can save up to 10 thousand rubles for each apartment! So, there are devices, but the receipt for the “utilities” does not take into account their readings. And in October, with an average temperature of +5, you have to pay the same amount for heating as in the harsh winter months.
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Inclusion of the house in the register of licenses
In one of our articles, we talked about a dispute in which the Supreme Court of the Russian Federation did not agree with previous courts and approved the right of a management company to manage a house that is not included in its license. A reader asked for help with his situation.
The State Housing Property Inspectorate, according to Order No. 938/pr, is obliged to make a decision on whether to include or exclude the house from the license. However, the department does not give such a decision. Do you need to go to court?
In this case, you should demand that changes be made to the register of licenses in accordance with Order No. 938/pr: write to the State Housing Inspectorate and the prosecutor’s office so that the latter can understand the situation. We also advised you to contact the Ombudsman for the rights of entrepreneurs in the region. The next step, if these actions do not help, is to go to court.
Installation of control unit using old contributions for major repairs
Article 170 of the RF Housing Code provides for two possible options for forming a capital repair fund: on the account of a regional operator and a special account. In this case, the capital repair fund is formed on the account of the regional operator.
The presence of debt of individual owners of premises to the management company (for payment of housing and communal services) also does not relieve the manager from performing mandatory work on the common property of the house. In accordance with Part 2 of Art. 162 of the Housing Code of the Russian Federation, the role of the customer under the MKD management agreement is the plurality of all owners of premises in the house (both observing and violating payment discipline). Due to the specifics of the subject of the agreement (performance of work (provision of services) for the maintenance of common property in the apartment building), the manager is deprived of the opportunity to make counter-provisions to only those owners who comply with payment discipline. In addition, we remind you that the conduct of claims and lawsuits against persons who have not fulfilled the obligation to pay for residential premises and utilities is one of the mandatory elements of the activity of managing apartment buildings (see Rules for carrying out activities for managing apartment buildings [2]) . Thus, work with the debts of the population is also included in the responsibilities of the management company; the success of its implementation does not affect the overall structure of the legal and contractual obligations of the management company for the proper maintenance of common property within the framework of the execution of the management agreement.
17 Jul 2020 lawurist7 285
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Charging an additional fee for replacing the ODPU
According to No. 279-FZ, a common building heat meter must be installed in all apartment buildings. In our article, we explained from what funds the work on installing the ODPU is paid for and whether the management organization can charge additional contributions from the owners to replace the common building meter.
One of the readers wrote that the management company missed the deadline for verifying the ODPU, the owners learned about this from the receipts - the payment was issued with increased tariffs. The company offers to organize an OSS and collect signatures for verification for an additional fee, because the ODPU is not on its balance sheet. Is the UO right?
The common house meter is part of the common property of the apartment building and is maintained at the expense of housing maintenance fees. The management authority is not right, the owners can contact the State Housing Property Authority.
Should RSO provide an installment plan to replace the ODPU? The RSO does not have such an obligation; everything depends on the agreements between it and the management organization.
We are often asked whether verification of common household meters has been suspended until January 1, 2021? We answer: the verification period has not been suspended, this only applies to individual metering devices.
RSO installed ODPU in the house in accordance with the requirements of No. 261-FZ, since the owners did not accept this issue at the general meeting. The device is installed, the owners of the premises, in addition to paying for the maintenance of the ODPU, must pay an installment payment for five years. Suddenly the metering device failed. The reader asks who should bear the burden of costs for repairs or possible replacement of the meter?
The obligation of the RSO to establish the ODPU is one-time, and it fulfilled it (No. 261-FZ). Further maintenance and maintenance of the operation of the ODPU is the responsibility of the MA. This is stated in paragraph 18 of PP No. 290, paragraphs. “d” clause 10 of PP No. 491. If the ODPU fails, then the responsibility for repair and replacement lies with the MA. This is confirmed by judicial practice.
We receive a lot of questions about whether it is possible to charge money from the owners for the reconstruction of the DPSU, since “the responsibility for carrying out actions for the reconstruction, commissioning and admission into operation of the heat metering unit is assigned” to them. Let's dot the i's.
Maintenance and maintenance of the operating capacity of the ODPU is the responsibility of the management organization (clause 18 of PP No. 290, paragraph “e”, clause 10 of PP No. 491). As we noted above, if the meter fails, it is the management authority that must repair or replace it, these works are considered included in the amount of payment for the maintenance of the residential premises. If the management authority is going to reconstruct the heating unit as a whole, then this is major repair work.
Reimbursement of legal expenses: basic information for the MA
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At whose expense is the installation of common house metering devices carried out?
But as practice shows, not all property owners were ready to bear such expenses, because installing a meter for one type of utility resource can cost about 100,000 rubles today.
In addition, before installing a common house metering device, it is necessary to inspect the condition of the engineering systems in the house for losses , and, if necessary, repair or additionally insulate water supply and heating pipes in order to avoid unnecessary leakage.
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Access to water supply risers in the apartment
Arbat MCA lawyer Alexander Ushakov, in an article written for us, told us what to do in a situation where the owners of premises in an apartment building block the management company’s access to common property, in particular, to water supply risers in apartments.
After the publication of the material, we were asked to advise whether it is possible to go to court for a recalculation if the HOA has been collecting money for the repair of blind areas around the apartment building for three years, but has not completed the work?
Alexander Ushakov explained what needs to be done:
- The board is obliged to report annually on the work done (clause 8, part 2, article 144 of the Housing Code of the Russian Federation), and the owners have the right to receive information about the financial and economic activities (hereinafter - FCD) of the HOA (clause 3, part 3, article 143.1 of the Housing Code of the Russian Federation) .
Before approval of the estimate for the next year at the general meeting of HOA members, the audit commission is obliged to give an opinion (clause 1.1., 2 part 3 of Article 150 of the Housing Code of the Russian Federation), and before approval by the general meeting of HOA members, the audit commission must make a report and conclusion on the implementation of the estimate (clauses 1, 1.1., 2, 3, part 3, article 143.1 of the Housing Code of the Russian Federation).
If all this is present, then the failure to complete the work may be due either to poor collection, low financial discipline, the presence of accounts receivable in the presence of accounts payable in previous periods, for example, for resource supply, payment of wages and payment of taxes and contributions, or previously concluded and executed contracts - where the collected funds are sent, which should be reflected in the report of the audit commission along with the identified violations.
If everything is smooth in the conclusions of the audit commission, and the estimates and reports are not approved by the general meetings of the HOA members, then it is necessary to change the board and appoint an auditor, outsource specialists to conduct an audit and restore accounting, normalize the work of the HOA. It is necessary to send a request (by hand or by letter with a list of attachments) to the HOA Board for information, and it does not matter whether the owner is a member of the HOA or not.
If there is no response, you can request documents in court, as well as file a complaint with the State Housing Inspectorate of the relevant entity and the local administration.
- Members of the HOA and owners of premises in an apartment building who are not members of the HOA have the right to make demands on the HOA regarding the quality of services provided and (or) work performed (Part 2 of Article 143.1 of the Housing Code of the Russian Federation).
Based on the norms of Art. 12 of the Civil Code of the Russian Federation, which provides as one of the methods of defense the award to perform the obligation in kind, file a claim, and then file a claim in court against the HOA for the obligation to perform the work. And such a claim will be satisfied. However, if there is an obvious lack of funds in the HOA, the execution of the claim may be drawn out for many years or not executed at all.
- Based on the norms of Art. 12 of the Civil Code of the Russian Federation, which provide, as one of the means of protecting the restoration of the situation that existed before the violation of the right, and the suppression of actions that violate the right or create a threat of its violation, to file a claim, and then to the court with a claim against the HOA in accordance with Art. Art. 307, 309, 407, 408, 1102 Civil Code of the Russian Federation, art. Art. 153, 155, 156 of the Housing Code of the Russian Federation on the recovery of amounts of unjust enrichment and the return of amounts of uncompleted work.
This will require calculations. And it is advisable to compare them with the interests of the neighbors in the form of a claim from all owners of premises in the apartment building against the negligent HOA. But whether this will solve the fundamental problem of HOA operation is a moot point. If the HOA refuses to provide documents, Alexander Ushakov recommends taking a mandatory comprehensive audit of the HOA's FCD and changing the composition of the board together with the chairman.
Should the management company pay for the resources supplied to the non-residential premises of the apartment building?
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Operation and replacement of control unit (E
We especially emphasize that the operation of the control center is not an urgent task that could not be foreseen when planning the contract price. Therefore, the rule formulated in Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 6464/10 on additional payment for emergency work and services performed and provided*(4) does not apply to them. Thus, from a financial point of view, it is inappropriate for the management company to carry out activities for the operation of the control center not provided for in the management contract and not included in its price without bringing the issue to the general meeting of premises owners, because it is unlikely that it will be possible to recover the actual expenses incurred from consumers.
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At the same time, the responsibility of the management company to carry out the necessary minimum of measures for the maintenance of common property corresponds to its right to demand proportionate payment. The procedure for setting the price of foreseeable work was described in detail in the article by S.N. Kozyreva “Mandatory and additional measures for the maintenance of common property: features of financing of management companies” (N 12, 2013). In short, the management company may initiate a review of the fee due to an increase in the volume of services and work under the contract upon expiration of the current contract. If the owners of the premises do not meet it halfway, the management company has the right not to renew the management agreement after its expiration, since an essential condition of the agreement should be considered not agreed upon. How do these conclusions apply to the financing of activities for the operation of public facilities?
