Resource supplying organization - a utility service provider? Utility providers are

In the relationship for the provision of utilities, in addition to consumers and suppliers of utilities, there is a certain contractor.

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 concluded direct contracts for the purchase of utilities (contracts for the maintenance of inter-house networks were concluded by the owners with other organizations), in the case of choosing direct management, is a provider of utilities with all the ensuing consequences.

We read the legislation

As follows from Clause 3 of the Rules, utility service providers are legal entities regardless of their organizational and legal form or individual entrepreneurs meeting the following requirements:

Produce or acquire a utility resource;

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

Provide utility services to consumers.

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

Managing organizations;

Homeowners' associations, housing cooperatives, ZhK and other specialized consumer cooperatives;

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

With direct management, the RNO often only supplies the utility resource to the border of the networks that are part of the common property, but is not responsible for maintaining the internal engineering networks and does not provide utility services to consumers. This provision is enshrined in, according to which, under direct management, the owners conclude an agreement on the acquisition of communal resources with the relevant RNO. At the same time, maintenance of in-house engineering systems is carried out by persons involved under a contract by owners of premises in an apartment building, or by owners independently, unless otherwise provided by an agreement with the RNO. Thus, in strict accordance with the legislation of the Republic of North Ossetia, with which the owners directly managing the house, entered into contracts for the purchase of utilities, is not a utility service provider.

This statement does not raise doubts in terms of imposing on the RNO the responsibility for the maintenance of in-house engineering networks. However, the question of the fulfillment of other duties by the RNO Regulations provision of utilities on the utility provider remains open.

Interpreting legislation

They extend their effect to the relationship between contractors and consumers of utilities ( p. 1). Nevertheless, due to their p. 8 the terms of the agreement on the acquisition of communal resources and wastewater disposal (reception (discharge) of wastewater), concluded with the RNO in order to provide the consumer with communal 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 aforementioned norm does not mean “must comply” with them.

Besides, p. 7 establishes the limits of RSO liability under the contract with consumers. So, the RNO is responsible for the mode and quality of supply of cold and hot water, electricity, gas and heat energy, as well as wastewater disposal at the border of the 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 in letters dated November 29, 2007 No.? 21492? CK / 07 "On the conclusion of contracts of utility service providers with resource supplying organizations" and dated 13.02.2007 No.? 2479? РМ / 07 "On the application of clause 8 of the Rules for the provision of public services" gives a broad interpretation of the aforementioned norm, indicating the need to comply with the terms of contracts with the RSO in terms of:

The 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 wastewater disposal (reception (discharge) of wastewater);

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

Liability of the parties to the contract;

Grounds and procedure for suspending or limiting 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 themselves Of the rules provision of utilities contains contradictions that do not allow them to be extended exclusively to the relationship between contractors and consumers of public services.

For example, clause 9 of the Rules for the provision of utilities stipulates that uninterrupted supply to the dwelling must be ensured utilities proper quality. However, this point is in conflict with the entire concept of the document under consideration. So, the performer provides the consumer utilities ... To this end, RSO supplies communal resource to the border of the networks that are part of the common property, but not to every dwelling (before entering the house). The RNO has no right to supply communal resources via intra-house networks, since they are part of the common property. Responsibilities of the RNO, thus, are limited to the uninterrupted supply of utilities before entering the house. It seems that this provision should be reflected in the current legislation.

One more example - sect. X of the Rules for the provision of utilities governs the suspension and limitation of the provision utilities ... Moreover, in p. 82 for the first time it is mentioned about suspension (or restriction) of filing utilities ... V paragraphs 80, 81 we are talking only about utilities.

The examples given show that the provisions Of the Rules for the Provision of Utilities refer both to utilities and, accordingly, are related to the activities of the contractor, and to the activities of the RNO for the supply of utilities. In this regard, the position of the Ministry of Regional Development of the Russian Federation on the broad interpretation p. 8 the document under consideration seems appropriate.

There is no doubt about the validity of this opinion. The fact is that what rights and responsibilities would not be endowed rules provision of utilities performers, the actual implementation of these rights and obligations directly depends on the RNO. In practice, HOAs and management organizations are just intermediaries between citizens and the RNO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter dated 13.02.2007 No.? 2479? RM / 07, the utility service provider has the right to demand the establishment of parity corresponding Rules for the provision of utilities terms of contracts with RNO 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 RNO (with a direct form of management), all the more have the right to demand the fulfillment of the duties of the executor on the part of the RNO.

Nevertheless, we have to admit that in practice, the explanations 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 limiting the supply of electricity, established by the Rules for the functioning of retail electricity markets during the transitional period of reforming the electricity industry, does not correspond to the procedure provided for). Subjectivity is manifested in the application of the current legislation by the judicial authorities.

We turn to arbitrators

The generalization of judicial practice leads to the conclusion that the owners of premises in apartment buildings do not apply for judicial protection at all and do not ask to impose on the RNO the duties of a utility service provider. They just pay the bills that these organizations give them regularly.

Nevertheless, the position of the arbitrators regarding the problem under consideration can be traced 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 becomes especially relevant precisely with the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court on claims of the RNO, which were brought to administrative responsibility for violating the requirements of legislation in the field of consumer protection.

So, Decree of 04.10.2007 No.? Ф08-6502 / 2007 FAS NKO supported the local government and the Rospotrebnadzor department, which refused to agree on the water supply schedule for the WSS organization. The organization of the water supply and sewerage system has the right to introduce a water supply schedule on the basis of p. 85 of the Rules for the use of municipal water supply and sewerage systems in the Russian Federation... However, as the arbitrators pointed out, by virtue of p. 3 of the specified document, its norms do not apply to relations between water and wastewater services organizations and citizens, relations between which are regulated by Rules for the provision of utilities... In turn, the provisions clause 8 of the Rules for the provision of utilities are aimed at ensuring compliance with the terms of contracts for the acquisition of utilities and sewerage, concluded by the resource supplying organization with the contractor of utilities, 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, the enterprise, which is the RNO, in relations with the water supply of citizens is obliged to comply with Utility rules.

Another example that I would like to give is - Resolution of the FAS SZO dated 05.11.2008 No.? A66-2701 / 2008... In it, the court confirmed the validity of bringing the RNO to administrative responsibility for clause 1 of Art. 14.8 Administrative Code of the Russian Federation for violation of 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, on its own behalf, issued receipts for payment for the services rendered. Therefore, it was she is a person selling public services to consumers, regardless of whether it is a utility service provider or a resource supplying organization. For application purposes Art. eight, 11 of the Law of the Russian Federation of 07.02.1992 No.? 2300-1 "On Protection of Consumer Rights" it is the RSO who is the executor, therefore, is recognized as the subject of responsibility.

So, the fundamental difference between a utility provider and a RNO is the fulfillment or non-fulfillment of the obligation to maintain in-house engineering networks. The rest of the RSO is not exempt from the obligation to comply with the requirements Of the Rules for the Provision of Utilities... 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 normative legal acts regulating the relationship between contractors and consumers of public services. The publication of fundamentally new acts capable of regulating relations with North Ossetia is not ruled out.

Approved by the Decree of the Government of the Russian Federation from 31.08.2006 №? 530.

In the relationship for the provision of utilities, in addition to consumers and suppliers of utilities, there is a certain contractor.

We read the legislation

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

Produce or acquire a utility resource;

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

Provide utility services to consumers.

Managing organizations;

Homeowners' associations, housing cooperatives, ZhK 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 RNO the responsibility for the maintenance of in-house engineering networks. However, the question of the fulfillment of other duties by the RNO Regulationsprovision of utilities on the utility provider remains open.

Interpreting legislation

Ministry of Regional Development of the Russian Federation in letters dated November 29, 2007 No. 21492-CK / 07 "On the conclusion of contracts of utility service providers with resource supplying organizations" and dated 13.02.2007 No. 2479-RM / 07 "On the application of clause 8 of the Rules for the provision of utilities" gives a broad interpretation of the aforementioned norm, indicating the need to comply with the terms of contracts with the RSO in terms of:

The 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 wastewater disposal (reception (discharge) of wastewater);

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

Liability of the parties to the contract;

Grounds and procedure for suspending or limiting 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 themselves Of the rulesprovision of utilities contains contradictions that do not allow them to be extended exclusively to the relationship between contractors and consumers of public services.

There is no doubt about the validity of this opinion. The fact is that what rights and responsibilities would not be endowed rulesprovision of utilities performers, the actual implementation of these rights and obligations directly depends on the RNO. In practice, HOAs and management organizations are just intermediaries between citizens and the RNO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter dated 13.02.2007 No. 2479-RM / 07, the utility service provider has the right to demand the establishment of parity corresponding Rules for the provision of utilities terms of contracts with RNO 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 RNO (with a direct form of management), all the more have the right to demand the fulfillment of the duties of the executor on the part of the RNO.

We turn to arbitrators

So, Decree of 04.10.2007 No. Ф08-6502 / 2007 FAS NKO supported the local government and the Rospotrebnadzor department, which refused to agree on the water supply schedule for the WSS organization. The organization of the water supply and sewerage system has the right to introduce a water supply schedule on the basis of p. 85 of the Rules for the use of municipal water supply and sewerage systems in the Russian Federation... However, as the arbitrators pointed out, by virtue of p. 3 of the specified document, its norms do not apply to relations between water and wastewater services organizations and citizens, relations between which are regulated by Rules for the provision of utilities... In turn, the provisions clause 8 of the Rules for the provision of utilitiesare aimed at ensuring compliance with the terms of contracts for the acquisition of utilities and sewerage, concluded by the resource supplying organization with the contractor of utilities, 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, the enterprise, which is the RNO, in relations with the water supply of citizens is obliged to comply with Utility rules.

Another example that I would like to give is - Resolution of the FAS SZO dated 05.11.2008 No. A66-2701 / 2008... In it, the court confirmed the validity of bringing the RNO to administrative responsibility for clause 1 of Art. 14.8 Administrative Code of the Russian Federation for violation of 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, on its own behalf, issued receipts for payment for the services rendered. Therefore, it was she is a person selling public services to consumers, regardless of whether it is a utility service provider or a resource supplying organization. For application purposes Art. eight, 11 of the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On Protection of Consumer Rights" it is the RSO who is the executor, therefore, is recognized as the subject of responsibility.

In the relationship for the provision of utilities, in addition to consumers and suppliers of utilities, there is a certain contractor.

We read the legislation

- produce or acquire a utility resource;

- are responsible for the maintenance of in-house engineering networks, through which they provide utilities to consumers;

- provide utilities to consumers.

- Homeowners' associations, housing cooperatives, ZhK and other specialized consumer cooperatives;

- and under direct management - another organization that produces or acquires communal resources.

Interpreting legislation

Utility rules extend their effect to the relationship between contractors and consumers of utilities ( p. 1). Nevertheless, due to their p. 8 the terms of the agreement on the acquisition of communal resources and wastewater disposal (reception (discharge) of wastewater), concluded with the RNO in order to provide the consumer with communal 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 aforementioned norm does not mean “must comply” with them.

- the rights and obligations of the parties to the contract;

- the order of supply of communal resources and water disposal (reception (discharge) of waste water);

- requirements for the quality of communal resources and wastewater disposal (reception (discharge) of wastewater);

- terms of payment for utility resources and water disposal (reception (discharge) of wastewater);

- responsibility of the parties to the contract;

- the grounds and procedure for suspending or limiting the supply of communal resources.

There is no doubt about the validity of this opinion. The fact is that what rights and responsibilities would not be endowed rules provision of utilities performers, the actual implementation of these rights and obligations directly depends on the RNO. In practice, HOAs and management organizations are just intermediaries between citizens and the RNO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter dated 13.02.2007 No. 2479-RM / 07, the utility service provider has the right to demand the establishment of parity corresponding Rules for the provision of utilities terms of contracts with RNO 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 RNO (with a direct form of management), all the more have the right to demand the fulfillment of the duties of the executor on the part of the RNO.

Nevertheless, we have to admit that in practice, the explanations 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 Operation of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry does not comply with the procedure provided for Rules for the provision of utilities). Subjectivity is manifested in the application of the current legislation by the judicial authorities.

We turn to arbitrators

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

The transfer to the Presidium of the Supreme Arbitration Court was refused (Definition of 08.02.2008 No. 55/08).

Approved by the Decree of the Government of the Russian Federation of 12.02.1999 No. 167.

There are no grounds for reviewing the case by way of supervision (Determination of the Supreme Arbitration Court of the Russian Federation dated 10.02.2009 No. 57/09).

According to the official definition: a resource supplying organization is a legal entity whose activities are aimed at providing residents with utilities. The work of such companies is controlled by the state.

Basic concepts

The activities of the RNO are controlled by several legal acts: government decrees, RF Housing Code, Federal Law No. 176.

This type of company includes organizations that provide:

electricity;
warmly;
water;
transportation and storage of the above resources.

Also, a similar legal status is awarded to companies that provide services such as getting rid of insects and small pests (rats, moles, etc.), removing solid waste, selling street lighting, etc. The well-known GorGaz and Energosbyt are typical examples of RNO.

Can RSO be considered a UK

A management company is a legal entity designed to operate residential buildings and regulate the actions of contractors. The Criminal Code operates on the basis of agreements with apartment owners. The management company is the intermediary between the tenants and the RNO. She is responsible for transferring funds to apartment owners to pay for the services of resource companies. UK - acts as a service provider, and RNO, in turn, is a subcontractor.

From this it follows that RNOs cannot act as the Criminal Code, since they are limited to only one type of activity and do not have the right to take part in the management of the house. However, direct settlements between RNO and residents are permissible on the basis of formal agreements.

Responsibility of RSO for errors in calculations

According to federal law No. 176, together with the RF Housing Code, the calculation of utility bills is the prerogative of the service provider. In case of admitting even minor errors in the calculations, the organization will be fined 50% of the original amount.

If the fact of an error in the calculations was revealed, it is necessary to submit a written application to the relevant company. If the service provider has not taken any action, you should file a complaint with RosPotrebNadzor.

In most cases, the executor of utilities is the management company. The situation in the country is such that such organizations often go bankrupt, violate laws and deliberately inflate prices for their services. In this regard, at the state level, it was allowed to make direct payments between RNO and residents of apartment buildings. This measure is designed to improve the quality of the provision of utilities and make payments as transparent as possible.

Features of direct cooperation

Resource supplying organizations have the right to act as a utility service provider if the building is managed directly by the apartment owners (i.e. bypassing the management company).

In such situations, usually one authorized representative from the tenants is selected, for whom an agreement is drawn up with the RSO. This cooperation is regulated on the basis of the decree of the government of the Russian Federation No. 354.

Direct settlements with RSO have a number of positive aspects:

The need for collective responsibility disappears. In other words, when making direct settlements, the management company will not compensate for the debts of non-payers at the expense of funds allocated for the overhaul and maintenance of the building.
The risk of bankruptcy of the management company is minimal, since it will not take part in the payments for utilities.

There are also negative features:

The variability of payment methods for utilities is decreasing. The lion's share of management companies cooperates with all payment systems and you can deposit funds without leaving your home (Internet banking, auto payments, etc.). When settling with RNO, you will have to contact the cash desks.
Recalculation of utilities will be difficult, because resource supplying organizations do not specialize in this aspect.

In what cases it is possible to conclude an agreement with the RSO

Since 2017, it has become possible to conclude contracts between homeowners and RNO directly, that is, without the participation of the management company. This is permissible in the following situations:

This form of management was chosen at the general meeting of residents. Relevant for houses with a small number of apartments.
The users of the services are the owners of non-residential premises.
When the contract between the Criminal Code and the tenants ended. With the drawing up of a new contract, the management company again assumes the responsibilities of a utility service provider.
The owner of a private house acts as a user of resources.
The HOA has debts to the RNO that exceed the average cost of services for the last 3 months.

In any of the situations presented above, the residents of the house can conclude a direct contract with their resource supplying organization.

This cooperation has both positive and negative aspects. Pros:

no costs to support the bureaucratic apparatus of the Criminal Code;
tenants get the opportunity to cooperate with any contracting companies, including on a short-term basis, this can be saved by choosing more favorable offers.

The disadvantages include:

house management becomes less effective, general meetings of tenants do not always allow solving the assigned tasks;
the opportunity is lost to carry out major repairs of the building using money from the fund for assisting the reform of housing and communal services.

In the video about direct cooperation with resource supplying organizations

Conclusion

Drawing up direct contracts with RNO is the prerogative of residents. This form of cooperation has equal pluses and minuses. It is most optimal for houses with a small number of apartments, since in this case it is much easier to resolve collective issues (the fewer participants, the easier it is to come to a compromise).

What is a resource supplying organization, can it be a management company, debts, contracts

The provision of residents of apartment buildings is carried out by a resource supplying organization (RSO). The activities of such organizations are very important, since without the services they provide, living in an apartment building is almost impossible. Of course, you have to pay for their services. To prevent such organizations from abusing their activities, the law establishes their special legal status.

What is a resource supplying organization

This organization is the producer of this or that resource. Also, the resource supplying organization acts as a supplier.

In Russia, most of the NOR remain under the control of the administration of settlements. However, the law does not prohibit individuals from engaging in this activity.

Management company or HOA and RSO

Most citizens mistakenly believe that the RNO and the management company (MC) are one and the same. But can a resource supplying organization be a management company. Of course it cannot.

The MC is the intermediary that ensures the organization of cooperation between the residents and the RNO.

Although the provision of resource supply services to the Criminal Code is not directly prohibited by law, in practice they delimit themselves from this kind of activity. Because for the most part, large investments are needed to carry out the activities of the RNO.

UK - utility service provider

The intermediary role of the Criminal Code is to perform the functions of the execution of utilities.

In this regard, the Criminal Code acts as a utility service provider, both to residents and to the NNO:

In the first case, the responsibility lies in the timely and continuous supply of resources.
Responsibility to RNO is to timely pay for the supplied resources.

Thus, two different contractual relationships arise for the same reason. On the one hand, the MC enters into a service agreement with the tenants of apartment buildings, on the other hand, with the RNO.

The agency agreement between the HOA and the resource-supplying organization has approximately the same goal.

Resolution No. 124

The entire procedure for the formation of such a legal relationship is regulated in sufficient detail by Decree 124 of the Government of the Russian Federation for management companies. This RLA contains the rules for concluding an agreement, the terms during which they must be concluded and the basic requirements for the content of the agreement.
Read more here: Resolution No. 124.

The contract between the resource supplying organization and the management company must fully comply with the requirements of the specified RLA.

Sample resource supply agreement with the management company

The contract for the supply of resources, concluded between the tenants and the contractor, contains the rights and obligations of the parties. For its part, the Criminal Code undertakes to provide subcontracted supply of resources, on the other hand, tenants undertake to timely pay utility bills.

Legislation requires that this agreement be drawn up in a certain order. A sample contract can be downloaded here.

Debts of management companies to resource supplying organizations

In cases where the Criminal Code acts as an executor of utilities, all responsibility for funds not paid on time to the RNO falls on it. RNO does not have the right to directly demand debt from resource consumers when there is no direct agreement between them. And with the Criminal Code, the calculation of RNO goes not for each individual consumer, but in general for the resources consumed by this or that house.

But the resource-supplying organization cannot cut off the entire house from the supply, for this reason the Criminal Code must collect from specific debtors. If this does not happen, then the debt is paid at the expense of the Criminal Code. Thus, a debt to the RNO is formed, which often leads to the bankruptcy of the management company.

If the Criminal Code does not take measures to collect the debts of the owners of the premises, then bankruptcy will come very quickly, because there are usually more than one or two such consumers.

In order to ensure its interests, the Criminal Code may:

disconnect the debtor from the local network;
go to court.

However, the measures taken by the Criminal Code must be within the framework of the contract concluded between it and the tenants.

How to shift the debts of the Criminal Code to an agent

The agent in this case is the manager who carries out transactions on the settlement account of the residents of the apartment building. Such accounts are created at the conclusion of an agreement with the management company and are usually located in Sberbank.

Since, in fact, the funds belong to the tenants, and not to the Criminal Code, the agent does not always pay the debts to this organization. After all, all current settlements with RNO should be carried out directly on the dates of the month specified in the contract. All residual funds, in addition to the prescribed remuneration of the Criminal Code, remain on the specified account, without the Criminal Code's right to dispose of them, except under the terms of the agreement.

In the event of bankruptcy of the Criminal Code, collection of its debts cannot be applied to this account.

This is done in order to protect the interests of the residents. After the bankruptcy of the Criminal Code, another Criminal Code may come to his place or an HOA may be formed, which will become the new manager.

The possibility of shifting the debts of the Criminal Code to the resource-supplying organization may be provided for in the agreement concluded with the agent. Of course, this happens with the consent of the tenants. If there was no such clause in the agreement, then the agent has the right to refuse to pay debts to the Criminal Code. The court also has no right to oblige the agent to be liable for the obligations of the Criminal Code.

Ways to restructure the debt of the management company

Legislation does not provide for ways of restructuring the debt of the Criminal Code to resource-supplying organizations. However, the complete lack of resource supply and the bankruptcy of the Criminal Code is not beneficial to either of the parties or residents. So, RNOs often resort to such a method as the conclusion of a debt restructuring agreement of the management company.

Restructuring implies the provision of a deferral or installment plan in the payment of debts without interrupting the supply of resources. This position is beneficial for both the RNO and the management company. In addition, the legitimate interests of the tenants are not infringed upon.

UK is a fraudster

Recently, more than 15 thousand cases of fraudulent actions by the Criminal Code have been officially identified. In most cases, they present utility bills to tenants, receive payments from them, and the funds do not reach resource-supplying organizations. As a result, the Criminal Code is simply declared bankrupt, and the money disappears.

In order to prevent such cases from happening, the priority is the method of concluding direct contracts with tenants. This allows them to directly control the process of receipt of payments and apply measures against non-payers separately.

Direct payments to resource supplying organizations

In order for direct payments to the RNO to be made, it is necessary that direct contracts between consumers and the resource supplying organization be concluded with the owner of each room in an apartment building. In this case, the tariffication and payment for the consumption of resources for premises of the common property of residents and acquisitions made for these purposes will be determined directly by the RNO.

Utility bills and fund payments will also be made in the name of the organization. This has both positive and negative sides.

The positive aspects of concluding an agreement directly include:

MC or HOA can focus their resources directly on the management of the common property of the house;
each resident is responsible only for his debts and pays only for the resources he has consumed.

The negative ones include:

for each type of resource you will have to pay in different places;
recalculation errors are possible.

In addition to direct contracts with a resource-supplying organization, there has been a growing tendency recently towards a complete refusal, both from the management company and from the HOA. In many respects, the reason for this was the abuses that were committed by officials of these organizations. In 2018, the right of residents of apartment buildings to carry out full direct management of the common property of the house was legislatively enshrined.

This attitude also has its pros and cons.

The positive features include:

no expense for the maintenance of the management apparatus;
individual responsibility of each tenant;
saving on a one-time hiring of contractors for certain needs of the house.

The available cons are expressed:

for each decision, it is necessary to convene a meeting of residents;
The Housing and Utilities Support Fund does not provide funds directly to residents.

Thus, a complete rejection of the Criminal Code also does not seem effective to consumers, as well as the granting of it the authority to perform utility services. It becomes obvious that when drawing up contracts with the management company or the establishment of an HOA, it is necessary to restrict its rights only by ensuring the management of common property and performing work on current and major repairs, and entrust the rest of the responsibilities to resource supplying organizations.

In addition, this form of resource consumption is much more economical than obtaining them through a management company or HOA.

On April 3, 2018, amendments to the Housing Code entered into force, allowing owners of premises in apartment blocks to conclude contracts for the provision of public services (contracts for cold and hot water supply, sewerage, electricity, gas supply, heat supply) and contracts for the provision of services for the management of solid municipal waste directly with resource providers. organizations, a regional operator for the management of municipal solid waste.

Due to the large number of applications received by the Ministry of Construction of Russia, the specialists of the Ministry expressed their position on a number of issues related to the conclusion of such "direct" agreements (hereinafter referred to as direct agreements).

In particular, the letter explains in detail the mechanism for protecting citizens from receiving "double" receipts for payment of utilities after the transition to direct contracts. In the event that, after the conclusion of a direct contract, the management organization continues to issue payments for utilities, it will have to pay a fine to consumers who were presented with such payment documents. In addition, the specialists of the Ministry noted that when direct contracts are concluded, the resource-supplying organization becomes the executor of utilities and it is she who is responsible for submitting payment documents to consumers. Therefore, the issuance of payments by the person managing the apartment building, in this case, is a violation of the license requirement. Licensing control in relation to management organizations is carried out by the bodies of state housing supervision of the constituent entities of the Russian Federation.

Answering the question about the delimitation of the areas of responsibility of the managing organization and the RNO in the case of a direct contract for the provision of low-quality utilities, the Ministry of Construction of Russia indicated the following. The person managing the MKD acts as a “single window” for receiving consumer complaints about the violation of the quality of the provided utilities and is responsible for the quality of such services inside the apartment building in terms of the proper maintenance of intra-building utilities. The resource supplying organization is responsible for the quality of utilities provided to the border of intra-building utilities.

It is also explained in the letter that the payment for general house needs when switching to direct contracts is set by the resource supplying organization to the person who manages the apartment building, and the latter sets the appropriate payment to the owners of premises in the apartment building as part of the payment for the maintenance of the living quarters.

When asked how the readings of individual and collective (general house) metering devices will be transferred when switching to direct contracts, the Ministry of Construction of Russia replied that it should provide resource-supplying organizations with the information necessary for calculating utility bills, including on the readings of individual metering devices (if such testimony is provided by the owners / employers) and collective (common house) metering devices, the persons managing the MKD must.

Answers to a number of other questions are given.

So, for example, it is noted that the resource supplying organization is not obliged to obtain the consent of the owners of premises in an apartment building in order to exercise the right to unilaterally refuse to execute a resource supply agreement concluded with the person in charge of the apartment building, due to the latter having a debt to the RNO.

With regard to this basis for terminating the resource supply agreement, the Ministry of Construction of Russia also explained that the amount of debt for a utility resource used to provide utility services is legally significant in this case. The presence of debt for communal resources consumed for the use and maintenance of common property in an apartment building is not a reason for a unilateral refusal of the RNO to fulfill a resource supply agreement.

The Ministry of Construction of Russia also indicated that the decision by the owners of premises in an apartment building to conclude a direct agreement with the RNO entails a change in the management agreement for an apartment building by virtue of law.

Is the resource supplying organization a utility service provider or who? 2018 year

"Direct settlement" is the payment by the consumer of utility bills through payment agents (or directly) directly to the resource supplying organization (RSO), which supplies utility resources under an agreement with the utility service provider.

Such calculations are regulated by Article 155 of the RF LC and the Rules for the Provision of Utilities to Owners and Users of Premises in Apartment Buildings and Residential Buildings, approved by the RF Government Decree No. 354 dated May 05, 2011.

1. At the same time, it is worth paying attention to the significant difference between direct settlements and direct contractual relations between consumers and RNO.

1.1. Direct settlement is a method of paying utility bills by a consumer who bears an obligation to pay accordingly to the management organization, HOA, housing cooperative, and does not entail contractual relations between the consumer and the RNO.

In other words, the so-called direct settlements are just a special way of fulfilling the obligations of the owners of premises to the contractor of utilities, the obligation itself remains unchanged.

Therefore, it is obvious that the decision by the owners of the premises to pay for the consumed utilities directly by the RNO does not relieve the MC as an executor of utilities from the obligation to conclude resource supply contracts.

1.2. Direct contractual relations between consumers and resource supplying organizations arise only in the following cases:

- under the direct management of the owners of the apartment building;

- when the method of controlling the MKD is not selected or is selected, but the events specified in paragraphs 14, 15 of Rules No. 354 have not occurred.

In other cases, the executors of utilities are - managing organizations, HOAs, housing cooperatives.

1.3. At the same time, payment for utilities consumed for general house needs is paid to the contractor even if there are direct settlements with the RNO.

2. Basis and algorithm for the transition to direct calculations

The basis for the transition to direct settlements with RNO is the decision of the general meeting of owners of premises in MKD (members of homeowners' associations, housing cooperatives), adopted in accordance with the requirements of the RF Housing Code. Such a decision does not require coordination with public authorities, as well as with the board of an association of homeowners, a housing cooperative, managing or resource supplying or other organizations. Making this decision is imperative for all consumers.

2.1. Conduct a general meeting of owners of MKD premises where the question is raised: “Changing the procedure for making payments for utilities (heat supply, electricity, water supply and sanitation), by paying directly to a resource supplying organization (except for utilities consumed when using common property in an apartment building) ".

2.2. Determine the transition date at the meeting.

2.3. Send a copy of the Minutes of the General Meeting to the address of the utility service provider (Managing organization, HOA, housing cooperative) and the resource supplying organization.

3. Who will be responsible for the debts of the owners of the premises for utilities when direct payments with resource supplying organizations.

Due to the fact that the obligation between the RSO and the Criminal Code (HOA) remains unchanged. This means that the ICD manager is responsible to the RNO for the proper payment of the communal resource supplied to the MKD. Therefore, the courts satisfy the claims of the RNO to recover from the Criminal Code (HOA) the debt for the utility resource minus the amounts received from the consumers.

4. Who issues payment documents?

Taking into account the fact that the manager of the MKD retains the status of a utility service provider, he is subject to paragraphs. "G" clause 31 of the Rules for the provision of utilities, according to which it is the contractor who is obliged to calculate the amount of payment for utilities. Therefore, in litigation, the subject of which is the conclusion of resource supply agreements, subject to the general meeting of premises owners making a decision to pay utility bills directly to the RNO, the court adopts approximately the following wording of the terms of the agreement: the utility service provider indicates in the payment documents submitted to the owners, tenants of premises in MKD no later than the 1st day of the month following the calculated one, the details of the RNO.

Thus, this option for making a payment does not allow the Criminal Code (HOA, ZhK) to achieve the goal of being removed from the provision of utilities.

On the contrary, the withdrawal of cash flows from the sphere of authority of the manager of the MKD can lead to unexpected consequences.

Chairman of the Board

HOA "Altair"

Krasnoyarsk

Kolesnikov Viktor Alekseevich

"Housing and communal services: accounting and taxation", 2008, N 3

By May 1, 2008, all apartment buildings should find responsible persons who will be entrusted with the management of each of them (or the owners will prefer to independently manage the house). Both the owners and the authorities can choose the method of management through an open tender. From the point of view of officials, the most preferable option is to choose a management organization - a professional market participant. Since both the institute of management of an apartment building, and such a subject as a management organization, arose in law recently - with the adoption of the Housing Code of the Russian Federation - many problems associated with their implementation in practice have not yet been resolved. This is evidenced by the contradictory arbitration practice and numerous questions submitted to the editorial office. This article examines the legal status of the managing organization.

One of the directions of reforming the industry, which is embodied in the creation of the institute of management of an apartment building, is to increase the responsibility of the owners of premises (read - tenants) for their house and interest in its high-quality content. The authorities tried to break the stereotype "common is nobody's" by introducing such an object of management and accounting as an apartment building. Previously, residents of all houses, for example, in a city district, paid on equal terms for the article "maintenance of the housing stock", but in fact the work was carried out only for a few houses. It turned out that people "threw off" for the improvement of other people's adjoining territories. Naturally, there was no need to talk about the transparency of the movement of the funds contributed as rent, which was one of the reasons for the prevailing thought in the mass consciousness: "I am crying for nothing." In some cases, this approach is indeed justified (for example, such a situation has developed with the spending of funds contributed under the item "major repairs" in houses that have not been repaired more than the prescribed time).

The introduction of house-to-house accounting of expenses for repair and maintenance of housing will provide owners with the necessary information about where their money is spent. In addition, it is the owners who are given the right to determine the list of works that are needed for a particular apartment building, taking into account the degree of its improvement and condition, and then monitor their implementation.

All these tasks can be realized if there is a person who is ready to plan and carry out work and be responsible for the result. This is the main principle of management of an apartment building, and the managing organization as a professional player in the housing and communal services market, possessing the necessary knowledge and competence, is proposed as the most adequate option for translating this principle into practice. Naturally, you will have to pay for the services of professionals, and this is the difference between the managing organization and the HOA, which does not profit from the activities of managing the house.

In addition to assigning to the managing organization the role of coordinator and executor of work on the maintenance and repair of common property in an apartment building, it is assigned another, no less significant role - the role of a buffer (this comparison is increasingly found in analytical materials on industry topics) between the population and resource supplying organizations ... In direct calculations of resource supplying organizations (water supply and sewerage, heating, energy, gas supply) and companies performing various works (for example, maintenance of elevators, intercom, repair of common property), the owner of the premises is forced to independently resolve all emerging issues (troubleshooting, recalculation boards) from each of them separately. Consequently, each organization should at least have a subscriber department for dealing with complaints, as well as ensure collection of payments from the population by concluding an agreement with cash settlement centers, banks, mail.

When transferring a house to a management organization, it is assumed that the management organization is responsible for the quality of the utilities provided to consumers (and not just the maintenance of the housing stock). Calculation of fees is also part of her responsibilities. It is she who must ensure the availability of an emergency dispatch service, recalculate payments when providing utilities of inadequate quality or with interruptions. It turns out that consumers, firstly, receive one payment document, which indicates all types of provided utilities and housing services. Separate receipts from gas supply and energy sales companies are not expected. Secondly, consumers can send all claims and wishes to the managing organization (they do not even need to know the coordinates of the energy sales or repair service) - it is she who must control their satisfaction and implementation. In short, property owners get a lot of benefits.

Representatives of resource-supplying organizations also assessed this procedure positively. And this is understandable, because it is incomparably easier to collect debts from one management organization than from a thousand citizens. In addition, the resource supplying organization, when included in the legal relationship with consumers of the managing organization in the form of a "buffer", gets rid of the need to comply with the requirements of legislation in the field of consumer protection (which, as you know, are more stringent in comparison with general civil liability provisions).

So, tenants and resource providers can be happy. However, the governing bodies do not share their optimism. The reason is that even at a first approximation, two main points can be identified that can stop managers and investors planning to enter this business. Firstly, the inclusion in taxable proceeds of the entire payment of the owners of premises (including for utilities), which most often deprives the managing organization of the right to use the simplified taxation system, and secondly, the need to pay all invoices issued by resource supplying organizations, regardless of the actual receipt of funds from population.

These tax and financial risks can be eliminated by building a legal relationship (in terms of providing public services to citizens) on the basis of an intermediary scheme. In this case, only the payment for the maintenance and repair of the dwelling should be included in the income of the managing organization, and the payment for utilities is regarded as transit payments, for the collection of which the managing organization is not responsible. The question arises: how legitimate is such an optimization of economic activity? To answer it, you should refer to the current legislation.

Housing Code

According to paragraph 1 of Art. 161 of the Housing Code of the Russian Federation, the management of an apartment building should, among other things, ensure the provision of utilities to citizens living in such a building. In turn, under the contract for the management of an apartment building, the management organization, on the instructions of the owners, undertakes to provide utilities (clause 2 of article 162 of the RF LC). Among the essential conditions of the management agreement, a list of utilities provided by the management organization is named (clause 2, clause 3, article 162 of the RF LC).

Note. An apartment building management agreement is concluded:

based on the results of an open competition;
when choosing a management organization by a general meeting of owners of premises in the house;
if the owners of the house in which the HOA is created, decided to resort to the services of a management organization.

As you can see, the wording of Sec. VIII of the RF LC suggests that the management organization provides utility services, and not just ensures their provision (for example, only through the conclusion of contracts with resource supplying organizations). The same axiom is the basis for the Rules for the provision of communal services to citizens, approved by the Decree of the Government of the Russian Federation of May 23, 2006 N 307 (hereinafter referred to as the Rules). This document has gained special significance in the industry, introduced new concepts, established new rights and obligations, and therefore deserves the closest attention.

Utility rules

The rules call the managing organization the executor of utilities - an entity that provides utilities, produces or purchases utilities and is responsible for the use of in-house engineering systems. The concept of a utility service provider is built on two terms that cannot be ignored. It's about services and resources.

Utilities - cold and hot water, electricity and heat, gas, domestic gas in cylinders, solid fuel used to provide public services.

Utilities - the activity of the contractor of utilities for cold and hot water supply, sewerage, electricity, gas supply and heating, providing comfortable living conditions for citizens in residential premises.

Note. The concept of a communal resource seems to some experts to be far-fetched and lacking real content. Criticizing the approach presented in the Rules as a whole, they point to the confusion of concepts allowed in the document itself: the standard for the consumption of utilities is defined as the monthly volume of consumption of utilities by the consumer. However, it must be remembered here that in clause 6 of the Rules, utilities (by type) represent the provision of the consumer with a communal resource of proper quality and in the required volumes. Therefore, it is quite logical to define the "quantity" of a service in terms of the quantity of the resource.

As follows from the Rules, the contractor acquires communal resources from a resource-supplying organization, then, with the help of in-house engineering systems, provides communal services to citizens. The Ministry of Regional Development explained that a mandatory sign of the status of a utility service provider is the responsibility of one person both for the supply of utility resources to the residential premises, and at the same time for the maintenance of intra-building engineering systems, using which utility services are provided to the consumer.<1>(Letter dated 20.03.2007 N 4989-SK / 07). By the way, the arbitrators have adopted the signs of a utility service provider formulated by the Ministry of Regional Development. For example, in the Resolution of 28.01.2008 N Ф09-11548 / 07-С5 FAS UO established that MUP Housing and Communal Services is not a provider of utilities, which means that it does not have the right to apply for regulated tariffs for the purchase of electricity (for the extraction of water from an artesian well) ...

<1>The contractor has the right to service the indoor equipment both on his own and with the involvement of other persons on the basis of a paid contract.

The resource supplying organization is responsible only to the border of the networks that are part of the common property of the owners of premises in an apartment building, with communal infrastructure systems. Further, from this border to the residential premises, the contractor is responsible for the quality and mode of provision of utilities.

Imagine a situation: an autonomous gas boiler house is installed in an apartment building. The utility service provider purchases cold water and gas from resource-supplying organizations, with the help of this boiler house, it produces hot water and heat energy, provides the residents of the house with hot water supply and heating services. This situation fits into the scheme. But what if all utilities "enter the house"? Indeed, for example, one of the arguments used by the courts, exempting HOAs from calculating VAT on the cost of utilities, is that HOAs do not provide utilities, since they do not have production facilities for this, they only act as intermediaries between the owners of the premises and resource supplying organizations. In the same way, it can be said that the management organization engaged in the maintenance and repair of internal engineering systems, collecting payments for living quarters and utilities does not directly provide utilities: it does not take water from artesian wells, does not heat it up in boiler rooms and etc. Of course, one must agree with this and admit that the concept of a utility service provider seems to be applicable only to resource supplying organizations. However, within the framework of the current legislation, it has to be applied to managing organizations, whose activities are more similar to intermediary ones. In our opinion, this is largely due to the desire to protect consumer rights.

The Government in the Rules, the Ministry of Regional Development in its explanations, the judges in their decisions proceed from the assumption that the utility is the management company. A resource supplying organization (which actually provides such services) can acquire the status of a utility service provider only in one situation - if the owners of the premises have chosen the method of direct management of the apartment building. If an HOA is created in the house or a management organization is chosen at a general meeting of owners, then they are the ones who are recognized as executors of utilities for the purposes of applying the Rules. Such conclusions are set out, in particular, in the Letter of the Ministry of Regional Development of Russia of March 20, 2007 N 4989-SK / 07, the answer to question 28 from the Review of legislation and judicial practice of the RF Armed Forces for the IV quarter of 2006<2>... If the house is managed by the HOA or the management organization, then the owners of the premises are not entitled to conclude contracts containing the conditions for the provision of utilities directly with resource supplying organizations (answer to question 26 of the same Survey).

<2>Approved by the Resolution of the Presidium of the RF Armed Forces dated 07.03.2007.

Managing organization - subscriber

The responsibilities of the utility service provider include the conclusion of contracts with resource supplying organizations or the independent production of utility resources necessary for the provision of utility services to consumers (clauses "in" clause 49 of the Rules). In a Letter dated 03.05.2007 N 8326-RM / 07, the Ministry of Regional Development explains: we are talking about contracts for the acquisition of all utilities, the provision of which is possible based on the degree of improvement of an apartment building. Recall that according to the definition given in clause 3 of the Rules, the resource supplying organization sells utility resources. Obviously, we are talking about an energy supply contract.

Also, federal legislation contains a direct indication that managing organizations are consumers of goods and services of organizations of the communal complex in the field of electricity, heat, water supply, wastewater disposal in apartment buildings, although they do not purchase them for themselves, but for provision to persons using the premises. in an apartment building<3>... Clause 89 of the Rules for the Functioning of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry<4>it is noted that the contractor of utilities purchases electrical energy from a supplier of last resort for the purpose of providing the owners and tenants of residential premises in an apartment building with a utility service for electricity supply, use for general household needs, as well as to compensate for electricity losses in internal electrical networks on the basis of an energy supply agreement (purchase agreement). electricity sales).

<3>Subparagraph "a" of clause 17 of Art. 2 of the Federal Law of 30.12.2004 N 210-FZ "On the basics of regulation of tariffs of the organizations of the communal complex".
<4>Approved by the Decree of the Government of the Russian Federation of August 31, 2006 N 530.

Since the management organizations are not interested in acting as a subscriber under a resource supply agreement (this means responsibility for paying for utility resources), they are trying to defend the opposite point of view in court. The main argument is that, according to paragraph 2 of Art. 539 of the Civil Code of the Russian Federation, an energy supply agreement is concluded with a subscriber if he has a power receiving device that meets the established technical requirements, connected to the networks of the power supply organization, and other necessary equipment. However, the arbitrators of the FAS SKO found it sufficient that the electrical installations (power receiving devices) were transferred to the management organization (Resolution of 18.01.2007 N F08-7066 / 2006).

In addition, the Supreme Court of the Russian Federation does not agree with the statement that the relationship between utility service providers and resource supplying organizations under contracts for the purchase of utility resources to provide the consumer with utility services cannot be attributed to power supply relations due to the fact that the service provider does not have an energy receiving device (Definition from 18.12 .2007 N CAS07-660). The argument is as follows. In paragraph 2 of Art. 548 of the Civil Code of the Russian Federation clearly states: to relations related to the supply of water through the connection network, the rules on the power supply contract apply, unless otherwise established by law or other legal acts.

The FAS DVO resolution of March 16, 2007 N F03-A51 / 07-1 / 199 is another example of an attempt by a management organization to refuse the status of a subscriber in the power supply agreement. In this case, the managing organization demanded that the contract with the heating network company be declared invalid. Two reasons have been put forward. Firstly, the managing organization entered into this contract under the influence of a delusion about the nature of the transaction (Article 178 of the Civil Code of the Russian Federation): in it it acts as a party, while in fact it is not a consumer of thermal energy and does not have an energy receiving device. Secondly, the managing organization regarded this transaction as enslaving (Article 179 of the Civil Code of the Russian Federation): it is executed at the expense of the managing organization, the solvency of which depends on the receipt of funds from citizens. However, the arbitrators did not agree with the arguments of the plaintiff: the contract clearly states the intention of the parties regarding the type of contract and the content of contractual obligations.

This opinion is also curious: the court did not accept the company's arguments that the draft contract for the sale and purchase of electricity with the energy sales organization does not take into account all the features of its intermediary position as a managing organization between the resource supplying organization and the consumer. The reason is that the implementation by a commercial organization of activities to manage the property of apartment owners in a residential building by one of the persons cannot give him any advantages in its implementation in relation to another party to the dispute (Resolution of the Nineteenth Arbitration Court of Appeal dated 02.04.2007 N A64- 3987 / 06-9).

Thus, the arbitrators agree that the managing organizations should act as subscribers in the energy supply contract. However, this is largely due to the approach formulated in the Rules. What happened before the Rules came into effect?

Breakthrough date

Before the entry into force of the Rules (06/09/2006), when the Rules for the provision of utilities, approved by the Decree of the Government of the Russian Federation of 09/26/1994 N 1099, were applied, the managing organization was not named among the providers of utilities. Recall that, according to clause 1.1 of this document, enterprises with housing stock and engineering infrastructure in their ownership, full economic management or operational management, as well as associations of owners who have been transferred the right to manage an apartment building (condominiums), were recognized as executors of communal services. Therefore, for example, if the housing and communal services organization entered into management contracts before 09.06.2006, they could well contain provisions on its intermediary role in the provision of communal services to citizens.

It was this conclusion that was guided by the Seventeenth Arbitration Court of Appeal in the Resolution of November 28, 2007 N 17AP-7985/2007-GK. Thus, the administration of the urban settlement, as the owner of premises in an apartment building, appealed to the court with a demand to invalidate the contract for the management of this building, concluded by the owners of the premises with the management organization on March 28, 2006. The reason is the absence in the contract of such essential conditions as the obligation of the managing organization to provide the owners of utilities, their list and the amount of payment. Since the defendant does not belong to organizations that have housing stock on any property right, is not an association of owners to which the right to manage an apartment building has been transferred, and is not a specialized organization providing utilities, the inclusion in the contract of the obligation to provide utilities did not correspond legislation in force at the time of the conclusion of the contract. In other words, the managing organization was not a utility service provider and the owners did not receive a corresponding assignment.

We add that the management agreement makes the conclusion of contracts with resource supplying organizations dependent on the availability of powers of attorney from each owner. The courts emphasized that such powers of attorney are not required after the conclusion of the management contract.

Another notable dispute was considered in the Resolution of the FAS FEB of 13.11.2007 N F03-A51 / 07-1 / 4490. The resource supplying organization appealed to the court with a demand to compel the managing organization to conclude an agreement for the supply of drinking water and the intake of wastewater. According to the plaintiff, the defendant is obliged to conclude a contract for the sale and purchase of communal resources, since he is not able to produce them on his own. As the arbitrators established, the management organization entered into a management agreement with the owners of the premises dated 09.01.2006; the provision of utilities was not included in its subject matter. Moreover, this agreement establishes the obligation of the owners of premises to conclude agreements on the purchase of cold and hot water, electricity and heat energy and on wastewater disposal directly with resource supplying organizations.

As the court noted, due to the public nature of the energy supply agreement, its conclusion is mandatory only for the energy supplying organization; a potential subscriber cannot be forced to conclude an agreement. At the same time, the obligation of the defendant to conclude this agreement is not provided for by the current legislation and he did not undertake any obligations to conclude it. Accordingly, the requirements of the resource supplying organization were not met.

Indeed, the obligation of the managing organization to conclude contracts with resource supplying organizations for the purchase of communal resources appeared in the legislation only on 09.06.2006. However, even after this date, the resource supplier does not have the right to force the management organization to sign the contract, since such an obligation arises for the contractor only in relation to the consumers of utilities. In other words, only the owners of the premises have the right to demand from the management organization to conclude contracts for the purchase of communal resources.

Note. That is why a resource supplying organization can get into an unpleasant situation, as happened with one private operator who rented utility networks from a municipal unitary enterprise. The management organizations of the entire city refused to conclude contracts for the purchase and sale of communal resources with him and, accordingly, did not charge the population for these resources. At the same time, the resource supplying organization had no right to interact with consumers directly - to collect payments from them. As a result, the resource-supplying organization accumulated large debts to its counterparties, which endangered the uninterrupted utilities of the settlement. The problem was solved only with the participation of the regional authorities.

Features of the power supply contract

According to clause 8 of the Rules, the terms of an agreement on the purchase of communal resources and wastewater disposal (reception (discharge) of wastewater), concluded with resource supplying organizations in order to provide the consumer with communal services, should not contradict the Rules and other regulatory legal acts of the Russian Federation. This provision was commented on by the Ministry of Regional Development in two letters in connection with numerous requests from utility providers. In the first of them (dated 13.02.2007 N 2479-РМ / 07) the officials limited themselves to general conclusions. So, the Housing Code and other legal acts take precedence over the norms of § 6 "Power supply" Ch. 30 of the Civil Code of the Russian Federation. Other legal acts in this case include the Rules. Consequently, the provisions of clause 8 of the Rules are aimed at ensuring compliance with the terms of contracts for the purchase of utilities and wastewater disposal concluded by the contractor of utilities with a resource supplying organization, and based on the Rules of obligations of the contractors to the owners of premises in apartment buildings and consumers. In other words, resource supply contracts must comply with the requirements of the Rules.

It turns out that clause 8 of the Rules extended the effect of this document, which, according to clause 1, regulates the relationship between contractors and consumers of utilities, also to the legal relationship between the contractor of utilities and the resource supplying organization. On the basis of clause 8 of the Rules, the utility service provider has the right to demand the establishment of agreements with resource supplying organizations corresponding to the Rules by agreement of the parties, and in the absence of such an agreement - in court.

In the second Letter - dated November 29, 2007 N 21492-SK / 07 - more detailed explanations followed. So, the acquisition by the contractor from the resource-supplying organization of communal resources and water disposal in order to provide the consumer with communal services are carried out on the basis of a public energy supply (resource supply) contract, upon the conclusion and execution of which the parties are obliged to meet the following requirements:

Rules for the use of public water supply and sewerage systems in the Russian Federation<5>;
Of the Rules for the Supply of Gas to the Russian Federation<6>;
The Rules for the Functioning of Retail Electricity Markets in the Transitional Period of the Electricity Industry Reform;
norms § 6 Ch. 30 of the Civil Code of the Russian Federation (in the part not regulated by the specified legal acts).

<5>Approved by the Decree of the Government of the Russian Federation of 12.02.1999 N 167.
<6>Approved by the Decree of the Government of the Russian Federation of 05.02.1998 N 162.

At the same time, the terms of the resource supply agreement must comply with the obligations of the contractor based on the Rules, namely the peremptory civil law norms, which are given by the Ministry of Regional Development in the Letter of November 29, 2007 N 21492-SK / 07 and can be summarized in a table.

Clause of the Rules	Mandatory requirements in part:
3 - 6	determining the parties to the relationship to provide utilities and the composition of utilities, for which the performer is responsible to the consumer, and not resource supplying organization
7	specifics of purchasing utilities and services wastewater disposal by the owners of premises carrying out direct management of an apartment building resource supplying organization that is not responsible for maintenance of building engineering systems
9 - 12, Appendix N 1	coordination of requirements for the provision of utilities and requirements for the quality of utilities and services drainage
15	tariffs for utilities and sewerage services, used for calculations of the resource supplying organization with executor - managing organization
16 - 34	procedure for calculating payment for consumed in an apartment house utilities and waste water, the frequency of making such a fee (payment of heat energy is produced evenly, payment is actually consumed amount of heat energy is possible only when application of two-part tariffs)
38	paying utility bills only to the specified in the payment document the bank account of the executor
54 - 59	the procedure for recalculating payments for certain types of utilities resources due to the temporary absence of consumers in occupied living quarters
64 - 74	the order of actions involved by the contractor of the emergency dispatching service of a resource supplying organization, drawing up an act on non-provision of utilities
60 - 63, Appendix N 1	the procedure for changing the amount of payment for the submission of utilities resources of inadequate quality or intermittently, exceeding the established duration
79 - 86	grounds and procedure for suspension or restriction of filing utilities

As an illustration of the above, we will cite several situations. Section VII of the Rules for the Use of Public Water Supply and Sewerage Systems in the Russian Federation provides for the possibility of stopping or limiting the supply of drinking water and (or) receiving waste water, in particular if the subscriber violates the payment terms. However, according to paragraphs. "d" clause 50 of the Rules, the utility service provider has the right in the manner provided for in section. X of the Rules, to suspend and restrict the supply of only hot water, electricity and gas to the consumer. Consequently, the contract for the supply of drinking water, concluded between the organization of the WSS and the management company, cannot contain conditions on the suspension or limitation of the supply of water in the event of a debt from the management organization. A similar conclusion with regard to heating was made by the Presidium of the Supreme Court in the Review of Legislation and Judicial Practice of the Supreme Court for the IV quarter of 2006 (answer to question 28).

One more example. The rules for the functioning of retail electricity markets during the transitional period of reforming the electric power industry contain one curious clause - numbered 90. According to this provision, the power supply agreement between the utility provider and the energy sales organization may provide for the right of the energy sales organization to receive payment for consumed by persons living in residential premises. electrical energy directly from the owners and tenants of the respective residential premises. As we remember, according to paragraph 38 of the Rules and paragraph 7 of Art. 155 of the Housing Code of the Russian Federation, payment for housing and utilities is paid to the bank account of the management organization. Consequently, the condition of the energy supply agreement, which establishes the right of the energy sales organization to receive payment for electricity directly from the owners, bypassing the management organization, contradicts the Rules, which means, in the opinion of the Ministry of Regional Development, is invalid.

Note. Considering the requirements of the managing organization on the settlement of disputes under the electricity sales and purchase agreement with the energy sales organization, the FAS TsO in its Resolution of 25.07.2007 N A64-3987 / 06-9 was guided not only by § 6 Ch. 30 of the Civil Code of the Russian Federation and the Rules for the Functioning of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry, but also the Rules.

So, we have to admit that the legislation offers managing organizations only a contract for the sale and purchase of utility resources, but gives the right to conclude it on a parity basis.

E. V. Ermolaeva

Magazine editor

"Housing and utilities:

accounting and taxation "

Any resources that are delivered to your home, namely electricity, water, heat and gas, in accordance with 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 figure out the decoding of incomprehensible abbreviations so that there are no difficulties in the future. MC (or UO) stands for a management company (organization). The resource supplying organization will hereinafter be referred to as RSO.

It is interesting! Since we have touched on two figures, let's say about the third. Consumers are residents of multi-apartment or small-apartment buildings, or people living in private houses. In simple words, the persons for whom these very services are produced.

The management company 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 the utility provider is, we mean MA. In simple words, it is an intermediary between residents of apartment buildings and a resource supplying organization. Sometimes, it is possible to conclude contracts directly between the RNO 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 is a manufacturer of utilities. Let's take a closer look at their activities. In addition to the above-mentioned utilities: 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 TV antennas.

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

Relationship between RSO and UK

After we figured out the abbreviations and what each of the organizations does, let's look at the interaction between the management company, RNO and the owners of residential premises. Let's start with two legal entities. They enter into 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 owners and transferring funds to RNO. Although the scheme is simple to understand, in practice difficulties often arise due to the lack of transparency in the activities of housing and communal services.

Relationship between the 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 utilities in full;
the requirement to check the quality of the resources provided;
obtaining the obligatory information prescribed in the contract;
claiming material compensation for the damage caused if the utilities were of inadequate quality.

pay the subscription fee in a timely manner;
report violations in building engineering systems;
use room metering devices;
provide verification of meters and engineering systems.

The contractor has a little more obligations, we list the most important of them:

make calculations for utilities;
maintenance of indoor systems;
sign an agreement with RNO on the purchase of utility resources;
provide the consumer with utilities.

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

Relationship between RNO 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. On rare occasions, the RNO can be seen as a utility service provider. This happens when the management of an apartment building is carried out in these ways:

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

These are the three most popular options when the utility becomes a utility contractor. To find out more information, you should refer to the 354th decree of the Russian Federation. It may seem that if the supplying organization is engaged in the provision of services and 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 point. Let's take a look at the merits and demerits 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 from neighbors who do not pay their bills on time;

The main disadvantages include:

you will have to pay for the provision of services in different places, this is not always convenient;
the emergence of difficulties in recalculations.

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

If we are talking about the conclusion of an agreement between RNO and legal entities for the provision of utilities 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 UK continues to be responsible for ensuring that the engineering systems for the building are in trouble-free operation. They also accept applications from owners of residential premises for work of inadequate quality. The company provides interaction between RNO and property owners.

Responsibility for the quality of the resources provided is divided along the border of the house. If violations in the operation of utilities occurred before entering the housing stock, then recalculation is made by the RNO. In case of non-observance of the quality in the in-house engineering systems, material compensation is paid by the Criminal Code.

Conclusion

Now let's summarize so that no one gets confused for sure. Decoding of RSO and UK - resource supplying organization and management company, respectively.

The first is engaged in producing and transporting them to the housing stock. The second ensures timely payment and maintenance of apartment buildings.

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

The topic of utilities is vast and immense. It's good if you have found the answers to your questions.