Legal disputes involving a regional overhaul operator are usually of two types: the operator collects debt on contributions for repairs or the operator collects debt under construction contracts. But practice is much more varied. Lawyer of MCA "Arbat" Vadim Bashir-Zade selected and analyzed the most interesting cases involving the registrar, management company and homeowners' association.
Management company experience: how to achieve major repairs of houses ahead of schedule
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Dispute about non-acceptance of documents on choosing the method of forming a capital repair fund
First, we will consider a dispute between a homeowners’ association and a regional capital repair operator regarding the failure to accept documents on the choice of method for forming a capital repair fund. Resolution 2 of the ACC dated January 27, 2020 No. A82-11230/2019 is about this.
The regional operator's HOA account had accumulated a significant amount of money, with which the owners decided to carry out major repairs of the apartment building. An extraordinary general meeting of owners was held to change the method of forming the capital repair fund from the reoperator's account to a special account of the HOA.
A special bank account was opened and documents were submitted to the operator. However, the regional operator refused to accept the documents. The HOA went to court.
The regional operator claimed that
- the submitted package does not contain a document confirming the fact that the owner of the special account manages the house;
- the agenda of the meeting does not include the wording of the question about the owner of the special account;
- The owners' decisions on the agenda items are not attached.
It was confirmed in court that the owners did not decide to determine the procedure for submitting payment documents, which is the basis for refusing to change the method of forming the capital repair fund. In addition, there was no register of delivery of notices about holding a general meeting to the owners of premises in an apartment building.
As a result, the court refused to satisfy the HOA's demands. The appellate instance upheld the decision.
Can the management company recover the cost of emergency major repairs from the reoperator?
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Judicial practice in 2020 on contributions for major repairs: to pay or not
- The contribution amount, which should not be less than the tariff established by the state. But, if the residents wish, it can be increased.
- Make a list of repair services that will be provided through contributions.
- Period of provision of repair services.
- The banking institution where an account will be opened for storing funds.
- Who will be the owner of the current account is an important point, because the house is not a legal entity. face.
- The contractor who will provide repair services. It is also necessary to draw up a preliminary estimate.
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Background information: Let us note that there are many controlled real estate objects for one operator. Responsible persons are required to know the condition of each object. But practice shows that they do not possess such knowledge. Therefore, it is not a fact that the house’s overhaul is carried out according to the specified period. It also remains questionable how the problems will be resolved.
Dispute regarding the provision of documents related to the opening and maintenance of a special account
The second dispute also occurred between the regional operator and the homeowners' association. It is about the obligation to provide documents and information related to the opening and maintenance of a special account. Based on the materials of Resolution 16 of the AAS dated March 23, 2020 in case No. A22-1762/2019.
At a meeting of owners of apartment building premises, a method for forming a capital repair fund in a special account was determined. The owner of the special account was the HOA.
Three years later, the city administration adopted a resolution regarding this house on the formation of a capital repair fund on the account of the regional operator. Considering that there were funds remaining in the HOA’s special account, the operator went to court with demands to transfer the balance to him, as well as to provide documents and information related to the maintenance of this account.
The court found no grounds to satisfy the regional operator's claims. In the decision, the department referred to the current housing legislation, as well as to the resolution of the Constitutional Court of the Russian Federation dated April 12, 2016 No. 10-P, according to which the choice of the method of forming a capital repair fund for common property in an apartment building is the result of the free will of the owners.
The appellate court agreed with the findings of the lower court, leaving the regional operator's complaint unsatisfied.
To pay or not for major repairs of apartment buildings in 2020
On the website of the registrar, as well as in the state information system of housing and communal services, there is detailed information about each house in the region, territory, republic, which is included in the regional overhaul program. If your house is included in the program, information will be available on the repair period (within three years), on the types of work performed and other data. In addition, at least six months before the renovation, the regional fund warns about the event and informs the owners of the apartment buildings about the estimated cost, scope of work, etc. The owners discuss this at a meeting and elect an owner representative to monitor the progress and outcome of the repairs.
In the Omsk region there is complete chaos with major repairs! In the village they send receipts to everyone, even 90-year-olds, hoping for illiteracy. Houses in rural areas are 40-5 years old. People repair them themselves, old people’s pensions are small, but the city doesn’t care, everyone is treated with the same brush! They promise a complete renovation in 2053! It's like we have a life expectancy of 110 years! The trial has already been held without notifying anyone. One major repair has already been stolen, now they are collecting money for someone else “for poverty.” What kind of legislators we have! They don't think about the people at all! How people survive - they don’t care! The fund has been elevated to law! It's mind boggling! After all, according to the Constitution, I may not pay for services not provided! But they only promise them to me in 40 years! What are they doing in the Duma? Why don't they stop this chaos? And where is our president? If you are going to collect money for major repairs, then only specifically for each house, and not create parasites!
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Dispute regarding collection of remuneration under an agency agreement
The third dispute occurred between the management organization and the regional operator and concerned the collection of remuneration under the agency agreement. The conclusions in case No. A41-111450/2019 dated 06/11/2020 were made by the AS MO.
The management organization entered into an agency agreement with the regional operator. His subject was
- activities for accrual, collection and processing of contributions for major repairs of common property in apartment buildings;
- delivery of payment documents to property owners;
- conducting claims work for the purpose of collecting and collecting debt on contributions for major repairs.
The MA sent certificates of services rendered to the regional operator, however, the operator did not fulfill its obligations to pay remuneration.
Since the regional operator did not provide a reasoned refusal, and the operator did not provide evidence of payment of the agency fee, the management organization’s demands were satisfied by the court in full.
Can the bank write off the HOA’s debt from the special capital repair account?
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Whether to pay contributions for major repairs or not, judicial practice 2020
170 of the Housing Code of the Russian Federation, when the minimum required size of the capital repair fund of an apartment building is reached, the owners may decide to suspend financing (payment of contributions). At the same time, fees continue to be collected only from persons who have arrears in contributions.
In accordance with Art. 54, 55, 56 and 57 of the Constitution of the Russian Federation, laws that worsen the situation of citizens cannot have retroactive force. The content of these articles has been repeatedly interpreted and applied by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. Thus, the Presidium of the Supreme Court of the Russian Federation, when resolving cases, proceeds from the constitutional principle that laws that worsen the situation of citizens do not have retroactive force (Art.
The management company and the homeowners association will strive for independence from the operator
Arbat MCA lawyer Vadim Bashir-Zadeh comments on judicial practice:
“The bulk of legal disputes with regional operators of capital repairs will remain quite common in the future: management organizations will continue to hold operators accountable under construction contracts, and they will collect arrears from management companies regarding contributions for capital repairs.
Some controversial situations will arise when the management organization or HOA creates a special account for transferring contributions for major repairs. I assume that more and more management companies and homeowners associations will independently charge contributions to a special account for later use. This trend towards independence from regional operators in matters of major repairs is already visible.”
Major renovation of apartment buildings
In January 2020, Federal Law No. 399 came into force, which provided for changes to Art. 169 of the Housing Code of the Russian Federation and Art. 17 of Federal Law No. 181 and is aimed at protecting persons with disabilities. People who fall under the preferential category are required to make a contribution, only the amount will be lower.
The organization that carries out the repairs is obliged to conclude an agreement with each apartment owner. Until the corresponding document is signed, the latter has the right to refuse major repairs. No one has the right to force or prohibit signing consent. These methods are a gross violation of legal standards.
08 Feb 2020 juristsib 582
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The former owner did not pay for major repairs
Citizens who privatize municipal apartments do not have to pay old debts for major repairs. On August 1, 2020, amendments to the Housing Code came into force, according to which unfulfilled obligations of the previous owner - the municipality - are not transferred to new home owners.
Who is responsible for paying debts?
Considering that the President emphasized the need to hold a discussion on optimizing the taxation system at the expert level, one should not expect that debts for major repairs will be forgiven at once. This requires the development of a draft appropriate solution and its subsequent implementation.
they do not like to deal with former owners and work according to their own rigid internal principles. Debts for utilities are a hot topic not only for those who are faced with debt from previous owners. The confrontation between housing and utility workers and residents who regularly pay monthly payments under the EAP can be observed constantly.
We recommend reading: Buying Selling Up to 1,000,000 No Need to Pay Taxes
Legislation and decisions of various courts
Let's turn to the legislation . If you still doubt that it is you who should pay for the overhaul of your home, then refer to the Housing Code.
In Article 169 you will see a phrase placed in the first sentence of the first paragraph. It states the obligation of each owner to make payments monthly. Read more about whether we need and should pay for major repairs of an apartment building if we are the owners and the apartment is privatized and who is exempt from paying and why in a separate article.
Exceptions are made for certain categories of citizens who either may not pay due to their age and physical condition, or due to the fact that they are tenants of municipal real estate. Who pays for the renovation of municipal apartments, and whether you need to pay for major repairs if the apartment is not privatized, read here.
The legislator also specifies the amount of payment. In accordance with paragraph 8.1 of Article 156 of the Housing Code, the owner pays in proportion to the square footage of the premises he occupies (what is the minimum contribution and the tariff for major repairs?).
Now let's turn to judicial practice . It is replete with cases of going to court with complaints against defaulters.
Contributions for major repairs - to pay or not, judicial practice.
Sometimes the plaintiffs are the residents of the house who were unable to raise the required amount for major repairs as a result of the debts of some persons, and sometimes management organizations sue.
Contributions to the capital repair fund: to pay or not? One way or another, the court can acquit the defaulter only in one case - if the debt is really small and there are special reasons for its non-payment, confirmed in court.
If the defaulter simply does not want to spend money on major repairs and considers it an unnecessary undertaking, then various sanctions are applied against this person. Some are provided for by law, some are appointed at the discretion of the court.
The most common penalty is a fine . This type of impact is provided for in Article 155 of the Housing Code. The defaulter is warned after several months about the increase in debt.
The penalty increases from month to month and, in the end, becomes greater than the amount of the debt. The court obliges the person to pay this debt, but if this request is refused or there is no response, other sanctions are applied.
Seizure of property involves the seizure of the owner's belongings by bailiffs by court decision to pay off a debt. Items are confiscated in proportion to the existing debt.
The owner is given time to repay the debts, and if he manages to do this, the things are returned, but if not, they are sold at auction.
Seizure of property just means the seizure of the owner’s personal property for good, for the purpose of further sale. This is done in the case when softer sanctions did not work.
This action is performed only by bailiffs and only in the presence of a court decision.
Considering the above, think about whether to pay for major repairs of an apartment building? Also one of the types of enforcement measures is a fine . It is prescribed if there is a slight non-payment, as a preventive measure.
A ban on traveling outside the state is often applicable . The debtor is brought into a certain base, which does not allow him to cross the border during customs control.
The restrictions are lifted as soon as the debtor has paid off his debts and notified the court of this fact by providing evidence.
You can learn more about the consequences of failure to pay for major repairs and what liability is provided here.
What may be the consequences of non-payment for major repairs - court
In the event that the owner of an apartment has arrears for one reason or another to pay for major repairs, the state has several legal levers of influence over its citizens . Such levers include:
Refusal of payments
The vast majority of collections of unpaid payments for major repairs through the court took place in a simplified manner. This means that the court for payment of capital repairs issues not a decision, but a court order that must be executed.
The court ruled that the defendant is the owner of the premises in the apartment building, which entails the obligation to pay fees for major repairs in accordance with Art. 153, 154, 158 and 169 LC RF. The court found the arguments about the impossibility of merging accounts untenable, since the premises had undergone redevelopment with the assignment of a single address. The defendant also did not deny that the debt of the previous owner was transferred to the new owner.
- number and date of issue;
- name of the judicial authority;
- information about the judge;
- details of the claimant: place of registration, name of the legal entity;
- known information about the debtor: place of residence, name, place of work, place and date of birth;
- a law allowing the execution of the claimant's demands;
- amount to be recovered;
- the amount of the fine or penalty;
- the amount of state duty, which is compensated by the debtor;
- details of the applicant's bank account for transferring funds;
- debt formation period.
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For the benefit of the fund
- living in houses recognized as unsafe;
- living in houses subject to demolition;
- persons living on the territory of a land plot seized in favor of the state or municipality;
- by decision of the general meeting of owners upon reaching the minimum amount of capital in the fund (clause 8 of article 170 of the Housing Code of the Russian Federation);
- when carrying out major repairs, where repeated provision of relevant services is not required (clause 5 of Article 181 of the Housing Code of the Russian Federation).
We bought an apartment, there seemed to be no debt on it. A year and a half later, a receipt for the debt for major repairs arrives. First they sent me the debt from the moment I bought this apartment, then they also sent me receipts for two impressive amounts. The previous owners also did not receive receipts for major repairs.
I received a debt for major repairs from the previous owners
In all other cases you will have to pay. If receipts do not arrive, you should contact your regional operator and find out the reason. You can find out the contacts of a regional operator in different ways. For example, look at the operator’s phone numbers on your neighbors’ receipts, call the management company or HOA, or check the contacts on the Housing and Communal Services Reform website.
Obligation to pay contributions for major repairs
When you bought an apartment, you should have made sure that the seller had no debt on mandatory payments, including paying for major repairs. A verbal statement that there are no debts is not considered evidence. In such cases, you cannot take their word for it - you must ask for paid receipts, since you cannot find out about such debts in any other way. Since you didn't do this, you will have to pay other people's debts.
If the amount of debt reaches a significant size, residents of the apartment can expect the following consequences: If you want to avoid the consequences listed above, it is recommended to determine the amount of debt and pay it off as early as possible. How to find out the debt for major repairs is described below.
If this bill is adopted, it is expected that this will have a positive impact on paying for major repairs, since if the debt is outstanding, it will be impossible to carry out any actions with the apartment. Therefore, if the owner wants to sell it, he will have to pay all the funds with accrued penalties for major repairs.
Ask a lawyer
- Drawing up a written statement.
- Preparation of the necessary documentation: received notification of debts, a copy of the purchase and sale agreement and certificates of registration of rights to real estate, meter readings recorded during the transaction.
- Submitting an application with a package of documents to the management company.
We recommend reading: 228.1 of the Criminal Code of the Russian Federation, editorial level, leveling
Based on the three arguments presented (1. the absence of an obligation to pay contributions to the Kyrgyz Republic, established by the Armed Forces of the Russian Federation; 2. voluntary, and not mandatory, contributions to funds; 3. the inadmissibility of payment for services not provided), false theorists conclude that the collection of contributions to the Kyrgyz Republic is illegal.
