Resource Supply Organization - Utility Contractor

In relations on the provision of utilities, in addition to consumers and suppliers of utilities, there is a certain executor.

When the owners of premises choose a direct form of management, this person remains unknown. Let us consider whether the resource supplying organization (RNO), with which the owners of premises concluded direct agreements on the acquisition of communal resources (the agreements on servicing the house networks signed by the owners with other organizations), if the direct management is chosen, is the executor of communal services with all the ensuing consequences.

We read the legislation

As follows from paragraph 3 of the Rules, legal entities are recognized as public service providers, regardless of the legal form or individual entrepreneursmeeting the following requirements:

Produce or acquire a communal resource;

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

Provide consumers with utilities.

A literal interpretation of such a definition allows us to state that a legal entity and individual entrepreneurs cannot be considered as executors of public utilities if at least one of the above elements is absent in their activities. The executor of utility services, depending on the method of managing the house chosen by the owners, can be:

Management organizations;

Homeowners Association, Housing Companies, Housing Companies and other specialized consumer cooperatives;

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

Under the direct management of the Republic of North Ossetia, it often only supplies the communal resource to the border of the networks that make up the common property, but is not responsible for the maintenance of the internal utility 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 corresponding RNO. At the same time, maintenance of intra-house engineering systems is carried out by persons who are contracted by the owners of the premises in the apartment building, or by the owners themselves, unless otherwise provided by the contract with the RSO. Thus, in strict accordance with the laws of the Republic of North Ossetia, with which the owners, directly managing the house, have concluded agreements on the acquisition of communal resources, the contractor is not a public utility.

This statement does not raise doubts regarding the assignment by the North Ossetia of the obligation to maintain the intra-house engineering networks. However, the question of the fulfillment by the RNO of other duties assigned The rules utilities on the utility contractor remains open.

Interpreting legislation

Extend their effect on the relationship between performers and consumers of utilities ( paragraph 1) However, due to their p. 8the terms of the contract for the acquisition of communal resources and wastewater (reception (discharge) of wastewater) concluded with the Republic of North Ossetia with the aim of providing 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 “they should not contradict” in the context of the mentioned norm does not mean “must comply” with them.

Moreover, p. 7 sets the limits of liability of the RNO under a contract with consumers. So, the RNO is responsible for the regime and quality of the supply of cold and hot water, electric energy, gas and thermal energy, as well as water 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 letters dated November 29, 2007? 21492? SK / 07 “On the conclusion of contracts for utilities with resource-supplying organizations”and dated 13.02.2007 No.? 2479? RM / 07 "On the application of paragraph 8 of the Rules for the provision of public utilities" gives an expansive interpretation of the aforementioned norm, indicating the need for compliance with the terms of contracts with the North Ossetia in part:

Rights and obligations of the parties to the contract;

The procedure for supplying communal resources and wastewater (reception (discharge) of wastewater);

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

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

Responsibility of the parties to the contract;

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

The main goal of the broad interpretation is to prevent violation of the rights of consumers who fully comply with the obligations established by the legislation of the Russian Federation and treaties. It should be noted that in the text themselves Of the Rules utilities contains contradictions that do not allow to extend their effect exclusively to the relationship between performers and consumers of public utilities.

For instance, clause 9 of the Rules for the provision of utility services provides that uninterrupted supply to the premises must be ensured communal resources proper quality. However, this paragraph is in conflict with the whole concept of the document in question. So, the contractor provides the consumer utilities . For these purposes, RNO supplies communal resource to the border of the networks that make up the common property, but not to every residential premises (before entering the house). The RNO does not have the right to supply communal resources through intra-house networks, since they are part of the common property. The responsibilities of the RNO are thus 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 - sec. X Rules for the provision of utility services governs suspension and limitation of provision utilities . Moreover, in p. 82first mentioned suspension (or restriction) of filing communal resources . IN paragraph 80, 81 it is only about utilities.

The above examples show that the provisions Rules for the provision of utilities relate both to public services and, accordingly, are associated with the activities of the contractor, as well as the activities of the Republic of North Ossetia in the supply of communal resources. In this regard, the position of the Ministry of Regional Development of the Russian Federation on broad interpretation p. 8the document under consideration seems appropriate.

There is no doubt about the validity of this opinion. The fact is that what rights and obligations would not be endowed rules utilities performers, the actual exercise of these rights and obligations is directly dependent on the RNO. In practice, the HOA and management organizations are just intermediaries between citizens and RSO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes, Letter dated February 13, 2007 No.? 2479? PM / 07, the utility contractor is entitled to demand the establishment of parity appropriate Public Utility Rules terms of contracts with the RNO by agreement of the parties, and in the absence of such an agreement - in a judicial proceeding. It seems that owners directly building relations with the North Ossetia (in the direct form of management), all the more have the right to demand the fulfillment of the obligations of the contractor by the North Ossetia.

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 functioning of retail electricity markets during the transitional period of reforming the electric power industry does not correspond to the procedure provided for). Subjectivity manifests itself in the application of existing legislation by the judiciary.

We appeal to the arbitrators

A 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 RSO the duties of a utility contractor. They simply regularly pay bills issued by them by these organizations.

Nevertheless, the position of the arbitrators regarding the issue in question can be traced in disputes between the RNO and Rospotrebnadzor. Such cases are precisely the case when a state body (the Federal Service for Supervision of Consumer Rights Protection and Human Welfare) can go to court to protect an indefinite number of people (residents of a particular house). This becomes particularly 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 in claims of the Republic of North Ossetia, which were brought to administrative responsibility for violating the requirements of the law in the field of consumer protection.

So, Decree dated 10/04/2007 No.? F08-6502 / 2007 FAS SKO supported the local government and the Rospotrebnadzor department, which refused the organization of the WSS to agree on the water supply schedule. A water supply schedule has the right to organize water supply and sewage facilities on the basis of Clause 85 of the Rules for the use of public water supply and sewage systems in the Russian Federation. However, as the arbitrators pointed out, by virtue of p. 3 of the said document, its norms do not apply to relations between organizations of the WSS and citizens, relations between which are regulated Rules for the provision of utilities. In turn provisions clause 8 of the Rules for the provision of public services they are aimed at ensuring compliance with the terms of contracts for the acquisition of communal resources and water disposal concluded by a resource supplying organization with a public services contractor, and in the absence of a contractor, by owners of premises in an apartment building (in case of direct management of the house) or by owners of residential buildings. In this regard, the company, which is the Republic of North Ossetia, must observe Rules for the provision of utilities.

Another example I would like to give is Resolution of the FAS SZO dated November 5, 2008 No.? A66-2701 / 2008. In it, the court confirmed the validity of bringing the RNO to administrative responsibility for clause 1, Article 14.8 Administrative Code of the Russian Federationfor violation of the consumer’s right to receive reliable information about the service, the contractor. The arbitrators found out that the company supplied heat energy to apartment buildings through its heating networks and issued receipts on its behalf to pay for the services rendered. Therefore it is she is a person who sells utility services to consumers, regardless of whether it is a utility provider or a resource supplying organization. For application purposes art. 8, 11 of the Law of the Russian Federation dated 07.02.1992 No.? 2300-1 "On the Protection of Consumer Rights" it is the RNO that is the executor, therefore, is recognized as the subject of responsibility.

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

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

Any resources that are delivered to your home, namely electricity, water, heat and gas, in accordance with 4 parts 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, we will deal with the decoding of incomprehensible abbreviations so that in the future there will be no difficulties. The UK (or UO) stands for management company (organization). The resource supplying organization in the future will be referred to as the RNO.

It is interesting! Since we have touched upon two persons involved, we can say about the third. Consumers are residents of apartment buildings or apartment buildings, or people living in private houses. In simple words, the person for whom these same services are produced.

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

The concept of a resource supplying organization

RNO for ordinary consumers is the producer of public utilities. Let's analyze their activities in more detail. In addition to the above utility services: water, 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 plots and courtyards;
installing public antennas for TVs.

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

Relations between the Republic of North Ossetia and the Criminal Code

After we figured out the abbreviations, and what each of the organizations does, let's look at the interaction between the management company, the RSO and the owners of residential premises. Let's start with two legal entities. They conclude a bilateral agreement for the supply of utilities. Resource-supplying organizations are 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 the North Ossetia. Although the scheme is simple to understand, in practice difficulties often arise due to the opacity of the housing and communal services.

Relationships between UO and homeowners

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

receiving utilities in full;
requirement to verify the quality of the resources provided;
obtaining mandatory information prescribed in the contract;
a claim for material compensation for damage caused if utility services were of inadequate quality.

timely pay a monthly fee;
report violations in house engineering systems
use indoor metering devices;
provide verification of meters and engineering systems.

The contractor is slightly more obligations, we list the most important of them:

make a calculation for utilities;
maintenance of house systems;
sign an agreement with the RNO on the purchase of communal resources;
provide the consumer with utility services.

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

Relations 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 management organization, the resource supplying organization and the owners are not connected in any way. In rare cases, the RNO can be considered as a utility contractor. This happens when the apartment building is managed in these ways:

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

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

lack of expenses for maintenance of MA;
owners will not suffer because of neighbors who do not pay bills on time;

The main "minuses" include:

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

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

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

Obligation of MA under direct contracts

The Criminal Code continues to be responsible for ensuring the engineering of internal house systems for uninterrupted operation. They also accept applications from owners of premises regarding work of inadequate quality. The company provides interaction between the RNO and property owners.

Responsibility for the quality of the resources provided is divided along the border of the house. If disruptions in the operation of utilities occurred before entering the housing fund, then the recalculation is carried out by the RNO. In case of non-compliance with the quality in intra-house engineering systems, the management company pays material compensation.

Conclusion

Now let’s summarize so that no one gets confused. Decoding RNO and UK - a resource supplying organization and a management company, respectively.

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

Important! The contractor of the resource supply is the UO, in some cases, it is possible to conclude a contract for the supply of utility services with the Republic of North Ossetia directly. Legal entities use this method most often.

The topic of utilities is vast and immense. Well, if you find the answers to your questions.

In relations on the provision of utilities, in addition to consumers and suppliers of utilities, there is a certain executor.

We read the legislation

As follows from paragraph 3 of the Rules, public service providers are recognized as legal entities regardless of the legal form or individual entrepreneurs meeting the following requirements:

- produce or acquire a communal resource;

- are responsible for servicing intra-house engineering networks, through which they provide utility services to consumers;

- provide consumers with utilities.

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

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

Interpreting legislation

Rules for the provision of utilities extend their influence to the relations between performers and consumers of public utilities ( paragraph 1) However, due to their p. 8 the terms of the contract for the acquisition of communal resources and wastewater (reception (discharge) of wastewater) concluded with the Republic of North Ossetia with the aim of providing 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 “they should not contradict” in the context of the mentioned norm does not mean “must comply” with them.

Ministry of Regional Development of the Russian Federation letters dated November 29, 2007 21492 ‑ SK / 07 “On the conclusion of contracts for utilities with resource-supplying organizations” and dated 13.02.2007 No. 2479-RM / 07 “On the application of paragraph 8 of the Rules for the provision of public utilities” gives an expansive interpretation of the aforementioned norm, indicating the need for compliance with the terms of contracts with the North Ossetia in part:

- rights and obligations of the parties to the contract;

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

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

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

- liability of the parties to the contract;

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

One more example - sec. X Rules for the provision of utility services governs suspension and limitation of provision utilities . Moreover, in p. 82 first mentioned suspension (or restriction) of filing communal resources . IN paragraph 80, 81 it is only about utilities.

The above examples show that the provisions Rules for the provision of utilities relate both to public services and, accordingly, are associated with the activities of the contractor, as well as the activities of the Republic of North Ossetia in the supply of communal resources. In this regard, the position of the Ministry of Regional Development of the Russian Federation on 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 obligations would not be endowed rules utilities performers, the actual exercise of these rights and obligations is directly dependent on the RNO. In practice, the HOA and management organizations are just intermediaries between citizens and RSO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes, Letter dated February 13, 2007 No. 2479 ‑ RM / 07, the utility contractor is entitled to demand the establishment of parity appropriate Public Utility Rules terms of contracts with the RNO by agreement of the parties, and in the absence of such an agreement - in a judicial proceeding. It seems that owners directly building relations with the North Ossetia (in the direct form of management), all the more have the right to demand the fulfillment of the obligations of the contractor by the North Ossetia.

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 first include the dependence of the RNO on energy legislation (for example, the procedure for suspending or restricting the supply of electricity established by the Rules for the functioning of retail electricity markets during the transitional period of reforming the electricity industry does not correspond to the procedure provided for Rules for the provision of utilities) Subjectivity manifests itself in the application of existing legislation by the judiciary.

We appeal to the arbitrators

Nevertheless, the position of the arbitrators regarding the issue in question can be traced in disputes between the RNO and Rospotrebnadzor. Such cases are exactly the case when a state body (the Federal Service for Supervision of Consumer Rights Protection and Human Welfare) can go to court to protect an indefinite circle of people (residents of a particular house). This becomes particularly 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 in claims of the Republic of North Ossetia, which were brought to administrative responsibility for violating the requirements of the law in the field of consumer protection.

Approved by 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 (Decision No. 55/08 of 08.02.2008).

Approved by Decree of the Government of the Russian Federation of February 12, 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 of 10.02.2009 No. 57/09).

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

Basic concepts

The activities of the Republic of North Ossetia are controlled by several legal acts: government decrees, RF LC, Federal Law No. 176.

This type of company includes organizations that provide:

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

Also, companies that provide such services as disposal of insects and small pests (rats, moles, etc.), removal of solid waste, sale of street lighting, etc., are awarded a similar legal status. Well-known GorGaz and Energosbyt are typical examples of North Ossetia.

Can the RNO be considered a UK

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

It follows that the RNO cannot act as a management company, as they are limited to only one occupation and do not have the right to take part in managing the house. However, direct settlements between the RNO and the tenants on the basis of official agreements are permissible.

Responsibility of the RNO for calculation errors

According to federal law No. 176, coupled with the RF Housing Code, the calculation of utility bills is the prerogative of the service provider. If even minor errors are made in the calculations, a penalty of 50% of the original amount is imposed on the organization.

If a fact of calculation error has been identified, a written application must be submitted to the appropriate company. If the service provider has not taken any action, you should file a complaint with RosPotrebNadzor.

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

Features of direct cooperation

Resource-supplying organizations have the right to act as an executor of utility services if the management of the house is carried out directly by the owners of the apartments (i.e., bypassing the Criminal Code).

In such situations, usually one authorized representative from tenants is selected, for which an agreement with the RNO is drawn up. This cooperation is regulated on the basis of Decree of the Government of the Russian Federation No. 354.

Direct settlements with RNO have a number of positive aspects:

There is no need for collective responsibility. In other words, when making direct settlements, the Criminal Code will not compensate the debts of non-payers at the expense of the funds allocated for overhaul and maintenance of the building.
The risk of bankruptcy of the Criminal Code is minimal, as it will not take part in payments for utilities.

There are also negative features:

The variability of payment methods for utilities is reduced. 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 making calculations with the RNO, you will have to contact the cashier.
Recalculation of utilities will be difficult, because resource-supplying organizations do not specialize in this aspect.

In what cases can I conclude an agreement with the RNO?

Since 2017, it has become possible to conclude agreements between homeowners and RNO directly, that is, without the participation of the Criminal Code. This is acceptable in the following situations:

This form of management was selected at the general meeting of residents. Actual 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 expired. With the drafting of the new contract, the management company again assumes the responsibilities of the contractor for public services.
The owner of a private house acts as a user of resources.
HOA has debts to the North Ossetia in excess of the average cost of services for the last 3 months.

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

Such cooperation can highlight both positive and negative sides. Pros:

lack of costs for providing 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 advantageous offers.

By cons include:

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

In the video about direct cooperation with resource supply organizations

Conclusion

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

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

Provision of residents of apartment buildings is carried out by a resource-supplying organization (RSO). The activities of such organizations are very important, because without the services they provide, living in an apartment building is almost impossible. Of course, their services must be paid. 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 manufacturer of a resource. Also, the resource supplying organization acts as a supplier.

In Russia, most of the North Ossetia remain under the administration of settlements. However, the law does not prohibit private individuals from engaging in this activity.

Management company or HOA and North Ossetia

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

The Criminal Code is an intermediary that ensures the organization of cooperation between tenants and the RSO.

Although the law does not directly prohibit the provision of services for supplying resources of the Criminal Code, in practice, they distinguish themselves from such activities. Because for the most part large-scale investments are needed to carry out the activities of the North Ossetia.

UK - utility contractor

The intermediary role of the management company is to perform the functions of performing public services.

In this regard, the Criminal Code acts as an executor of public utilities, both to residents and the RSO:

In the first case, the responsibility lies in the timely and continuous supply of resources.
Responsibility to the RNO consists in timely payment of the delivered resources.

Thus, two different contractual relationships arise on the same occasion. On the one hand, the Criminal Code concludes a service agreement with residents of apartment buildings, on the other hand, with the North Ossetia.

About the same purpose has an agency agreement between the HOA and the resource supplying organization.

Decree No. 124

The whole procedure for the formation of such a legal relationship is regulated in sufficient detail by 124 Resolution of the Government of the Russian Federation for management companies. This NLA 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: Decree No. 124.

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

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 is committed to providing a subcontracted supply of resources; on the other hand, residents are obligated to make timely payment of utility bills.

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

Debts of management companies to resource supply organizations

In cases where the Criminal Code acts as an executor of public utilities, all responsibility for unpaid funds on time to the RNO lies with it. RAO is not entitled to directly demand debt from consumers of resources when there is no direct contract between them. And with the Criminal Code, the calculation of the RNO is not for each individual consumer, but in general for the consumed resources of a particular house.

But the resource supplying organization cannot cut off the whole 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 by the UK. Thus, a debt is formed to the North Ossetia, which often leads to bankruptcy of the Criminal Code.

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 not one or two such consumers.

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

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

However, the measures taken by the Criminal Code should be within the framework of the agreement concluded between him and the residents.

How to transfer the debts of the UK to an agent

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

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

In the event of a 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 residents. After the bankruptcy of the Criminal Code, another Criminal Code may take its place or a HOA may be formed, which will become the new manager.

The possibility of transferring the debts of the asset management company to the resource supplying organization may be provided for in the contract concluded with the agent. Of course, this happens with the consent of the residents. If there was no such clause in the agreement, then the agent has the right to refuse to pay the debts of the Criminal Code. The court is also not entitled to oblige the agent to answer for the obligations of the Criminal Code.

Ways to restructure debt management company

Legislation does not provide for ways to restructure UK debt to resource-supplying organizations. However, the complete lack of resources and the bankruptcy of the Criminal Code are not beneficial to either party or to the residents. So, RNOs often resort to such a method as concluding an agreement on restructuring the debt of the UK.

Restructuring involves the provision of a deferral or installment plan in payment of debts without stopping the supply of resources. This situation is beneficial both for the North Ossetia and the management company. In addition, the legitimate interests of the residents are not infringed.

UK - a scammer

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 residents, receive payment from them, and the funds do not reach the 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 way to conclude direct contracts with residents. This allows them to directly control the process of receipt of payments and apply measures to non-payers separately.

Direct Payments to Resource Providers

For direct payments by the Republic of North Ossetia to be made, it is necessary that direct agreements between consumers and the resource supplying organization be concluded with the owner of each premises in the apartment building. At the same time, tariffing and payment for the consumption of resources for premises of common property of residents and acquisitions made for these purposes will be determined directly by the RNO.

Utility bills and fund fees will also be made in the name of the organization. There are both positive and negative aspects to this.

The positive parties to the conclusion of the contract directly include:

UK or HOA can focus their resources directly on the management of common property at home;
each resident is only liable for his debts and pays only for the resources he has consumed.

The negative include:

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

In addition to direct agreements with a resource-supplying organization, a tendency has recently been growing towards a complete rejection of both the Criminal Code and the HOA. Much of the reason was the abuse that was allowed 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 is legislatively fixed.

This attitude also has its pros and cons.

The positive features include:

lack of expense on the content of the control apparatus;
individual responsibility of each tenant;
saving on one-time involvement of contractors for various home needs.

Available cons are expressed:

for each decision it is necessary to convene a meeting of tenants;
housing and communal services support fund does not issue funds directly to residents.

Thus, a complete rejection of the Criminal Code also does not seem effective to consumers, as well as providing it with the authority to perform utility services. It becomes obvious that when drawing up contracts with the Criminal Code or establishing a HOA, it is necessary to limit his rights only to ensuring the management of common property and the performance of work on overhaul and overhaul, and entrust the remaining responsibilities to resource-supplying organizations.

In addition, this form of resource consumption is much more economical than getting them through the UK or HOA.

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

Due to the large number of appeals received by the Ministry of Construction of Russia, 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 explained in detail the mechanism for protecting citizens from receiving “double” receipts for utility bills after switching to direct contracts. If, after concluding a direct contract, the managing organization continues to charge utility bills, it will have to pay a fine to consumers who submitted such payment documents. In addition, specialists of the Ministry noted that when concluding direct agreements, the resource-supplying organization becomes the executor of public utilities and that it is the responsibility of the organization to submit payment documents to consumers. Therefore, issuing payment orders by the person managing the apartment building in this case is a violation of the license requirement. Licensing control in relation to managing organizations is carried out by the state housing supervision bodies 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 North Ossetia in the case of concluding 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 a violation of the quality of provided public services and is responsible for the quality of such services inside the apartment building in terms of the proper maintenance of intra-house utilities. The resource supplying organization is responsible for the quality of utilities provided to the border of intra-house utilities.

The letter also explained that the fee for common house needs when switching to direct contracts is set by the resource supplying organization to the person managing the MKD, and the latter sets the corresponding fee to the owners of premises in an apartment building as part of a fee for the maintenance of a dwelling.

When asked about how the testimony of individual and collective (common) metering devices will be transferred during the transition to direct contracts, the Ministry of Construction of Russia answered that it would be necessary to provide the resource-supplying organizations with the information necessary for charging utility bills, including the testimony of individual metering devices (in the provision of such evidence by the owners / tenants) and collective (common house) metering devices, should be the persons managing the MKD.

Answers to a number of other questions are provided.

For example, it was 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 fulfill the resource supply agreement concluded with the person managing the apartment building due to the last debt to the North Ossetia.

With regard to this ground for termination of the resource supply agreement, the Ministry of Construction of Russia also explained that in this case the amount of debt for a communal resource used to provide communal services is legally significant. The presence of debts for communal resources consumed for the use and maintenance of common property in the MKD is not a basis for the unilateral refusal of the Republic of North Ossetia to fulfill the resource supply agreement.

The Russian Ministry of Construction also indicated that the adoption by the owners of the premises in the apartment building of a decision to conclude a direct contract with the RSO entails a change in the management contract for the apartment building by virtue of the law.

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

“Direct settlements” is the payment by the consumer of utility bills through payment agents (or directly) directly to the address of a resource supplying organization (RNO), which supplies utility resources under an agreement with a utility contractor.

Such calculations are governed by Article 155 of the LC RF and the Rules for the provision of utilities to owners and users of premises in apartment buildings and apartment buildings, approved by RF Government Resolution dated May 05, 2011 No. 354.

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 settlements are a way of paying utility bills by a consumer that is liable for the corresponding payment to the managing organization, HOA, ZhSK, and does not entail the emergence of contractual relations between the consumer and 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 utility contractor, the obligation itself remains unchanged.

Therefore, it is obvious that the decision by the owners of the premises to make a payment for the consumed communal resources directly by the North Ossetia does not remove from the Criminal Code as an executor of public utilities the obligation to conclude resource supply agreements.

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

- with direct management of the owners of MKD;

- when the MCD control method 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 public utilities are - managing organizations, homeowners associations, housing cooperatives.

1.3. At the same time, utility bills consumed for general house needs are paid to the contractor even if there are direct settlements with the RSO.

2. Base and algorithm for switching to direct calculations

The basis for the transition to direct settlements with the North Ossetia is the decision of the general meeting of owners of premises in the MKD (members of the HOA, housing cooperative), 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 the partnership of homeowners, a housing cooperative that manages either resource-supplying or other organizations. The adoption of such a decision is binding on all consumers.

2.1. Hold a general meeting of owners of MKD premises where the question is: “Change in the procedure for making payments for utilities (heat supply, electricity, water and wastewater), by paying directly to the 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 Protocol of the general meeting to the address of the utility contractor (Managing organization, Homeowners' association, housing cooperative) and the resource supplying organization.

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

Due to the fact that the obligation between the North Ossetia and the Criminal Code (HOA) remains unchanged. So, the managing director of the MKD is responsible to the RSO for the proper payment of the communal resource supplied to the MKD. Therefore, the courts satisfy the claims of the North Ossetia to recover from the Criminal Code (HOA) debts for communal resources minus the amounts received from consumers.

4. Who issues the payment documents?

Given the fact that the manager of the MKD retains the status of the contractor of public utilities, it is subject to paragraphs. “G” p. 31 of the Rules for the provision of utility services, according to which it is the contractor who is obliged to calculate the size of the utility fee. Therefore, in court proceedings, the subject of which is the conclusion of resource supply agreements, subject to the decision of the general meeting of property owners to pay utility bills directly to the North Ossetia, the court accepts the following wording of the terms of the agreement: the utility provider indicates in the payment documents submitted to the owners, tenants of the premises MCD no later than the 1st day of the month following the settlement, details of the RNO.

Thus, this option of making a payment does not allow the Criminal Code (HOA, LCD) to achieve the goal of moving away from the provision of public services.

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

Chairman of the Board

Homeowners Association Altair

krasnoyarsk

Kolesnikov Victor Alekseevich

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

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

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

The introduction of podomovy accounting of expenses for the repair and maintenance of housing will provide owners with the necessary information about where their money was spent. In addition, it is the owners who are given the right to determine the list of works that a particular apartment building needs, taking into account the degree of 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. It is in this that the basic principle of managing an apartment building is seen, and the managing organization, as a professional player in the housing and communal services market with the necessary knowledge and competence, is proposed as the most appropriate way to put 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 house management activities.

In addition to assigning to the managing organization the role of coordinator and contractor for the maintenance and repair of common property in an apartment building, she has another, equally 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, sewerage, energy, gas supply) and companies performing various works (for example, maintenance of elevators, intercoms, repair of common property), the owner of the premises is forced to independently solve all arising issues (troubleshooting, recalculation boards) with each of them separately. Consequently, each organization should at least have a subscription department for dealing with complaints, as well as ensure collection of payments from the population by concluding an agreement with cash settlement centers, banks, and mail.

When transferring a house to a managing organization, it is assumed that the managing organization is responsible for the quality of utility services 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 emergency dispatching services, make a recalculation of fees for the provision of public services of inadequate quality or intermittently. It turns out that consumers, firstly, receive one payment document, which indicates all types of provided communal and housing services. Separate receipts from gas supply and distribution companies are not expected. Secondly, consumers can send all the complaints and wishes to the managing organization (they don’t even need to know the coordinates of the energy supply or the repair service) - it is she who must control their satisfaction and implementation. In short, the owners of the premises receive a lot of advantages.

Representatives of resource-supplying organizations also rated this order positively. And this is understandable, because collecting debt from one managing organization is incomparably easier than collecting from thousands of citizens. In addition, a 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 the 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 satisfied. However, management organizations do not share their optimism. The reason is that even with a first approximation, you can identify two main points that can stop managers and investors planning to enter this business. Firstly, the inclusion in the taxable revenue of the entire payment of the owners of premises (including utility bills), which most often deprives the managing organization of the right to use the simplified taxation system, and secondly, the need to pay all bills issued by resource-supplying organizations, regardless of the actual receipt of funds from population.

These tax and financial risks can be eliminated if the relationship is built (in terms of providing public services to citizens) on the basis of an intermediary scheme. In this case, only the fee for the maintenance and repair of the dwelling should be included in the income of the managing organization, and the payment of utility bills is regarded as transit payments, for the collection of which the managing organization is not responsible. The question arises: how legitimate is this 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 ensure, inter alia, the provision of public services to citizens living in such a house. In turn, under a management contract for an apartment building, the managing organization, on the instructions of the owners, is obligated to provide utilities (clause 2 of article 162 of the LC RF). Among the essential conditions of the management contract, the list of utility services provided by the managing organization is provided (subparagraph 2, paragraph 3, article 162 of the LC RF).

Note. The apartment building management contract is:

according to the results of an open competition;
when choosing a management organization by the 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 the managing organization.

As we see, the wording of Sec. VIII LCD of the Russian Federation suggest that the managing organization provides utility services, rather than just providing them (for example, only by concluding agreements with resource-supplying organizations). From the same axioms also come the Rules for the provision of public services to citizens, approved by Decree of the Government of the Russian Federation of 05.23.2006 N 307 (hereinafter - the Rules). This document has received special significance in the industry, introduced new concepts, established new rights and obligations, therefore, it deserves the closest attention.

Rules for the provision of utilities

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

Utilities - cold and hot water, electric and thermal energy, gas, domestic gas in cylinders, solid fuels used to provide utility services.

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

Note. The concept of a communal resource appears to some experts as far-fetched and lacking real content. Criticizing the approach presented in the Rules as a whole, they point to a confusion of concepts allowed in the document itself: the utility consumption standard is defined as the monthly consumption of utility resources by the consumer. However, here it must be remembered that in paragraph 6 of the Rules utility services (by type) are to provide the consumer with an adequate quality public resource and in the required volumes. Therefore, it is logical to determine the “quantity” of a service through the amount of a resource.

As follows from the Rules, the contractor acquires communal resources from a resource-supplying organization, then with the help of intra-house engineering systems it provides citizens with communal services. The Ministry of Regional Development clarified that a mandatory sign of the status of a utility contractor is the responsibility of one person for the supply of communal resources to a residential building, and at the same time for the maintenance of internal engineering systems with which utility services are provided to the consumer<1> (Letter of March 20, 2007 N 4989-SK / 07). By the way, the arbitrators adopted the signs of the public utility contractor formulated by the Ministry of Regional Development. for instance, in the Decree of January 28, 2008 N Ф09-11548 / 07-С5, the FAS UO established that MUP Housing and Public Utilities is not a public service provider, which means that it is not entitled to apply for the use of regulated tariffs for the purchase of electric energy (for water production from an artesian well) .

<1> The Contractor has the right to service the in-house equipment both on its own and with the involvement of other persons on the basis of a reimbursable contract.

The resource supplying organization is liable only to the border of the networks that make up 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 providing public services.

Imagine a situation: an autonomous gas boiler room is installed in an apartment building. The utility contractor purchases cold water and gas from resource-supplying organizations, with the help of this boiler house produces hot water and thermal energy, and provides the residents of the house with hot water and heating services. This situation fits into the scheme. But what if all the utilities "enter the house"? After all, for example, one of the arguments that the courts use when exempting HOAs from calculating VAT on the cost of utilities is that HOAs do not provide utilities, since they do not have production capacities for this, they only act as intermediaries between the owners of premises and resource supplying organizations. In the same way, it can be said that the management organization, which is engaged in the maintenance and repair of intra-house engineering systems, collects fees for housing and utilities, does not directly provide utility services: it does not collect water from artesian wells, does not heat it in boiler rooms and etc. Of course, we must agree with this and acknowledge that the concept of a utility service provider seems to apply only to resource-supplying organizations. However, in the framework of the current legislation, it has to be applied to managing organizations, whose activities are more similar to intermediary. In our opinion, this is largely due to the desire to protect the rights of consumers.

The Government in the Rules, the Ministry of Regional Development in its explanations, the judges in the decisions proceed from the fact that the utility company is the management company. A resource supplying organization (which actually provides such services) can acquire the status of a utility contractor only in one situation - if the owners of the premises have chosen the method of direct management of the apartment building. If the HOA is created in the house or a management organization is chosen at the general meeting of the owners, then they are recognized as the executors of utility services for the purpose of applying the Rules. Such conclusions are set forth, in particular, in the Letter of the Ministry of Regional Development of Russia dated 20.03.2007 N 4989-SK / 07, the answer to question 28 from the Review of the 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 managing organization, then the owners of the premises are not entitled to conclude agreements containing the conditions for the provision of utilities with resource-supplying organizations directly (answer to question 26 of the same Review).

<2> Approved by the Resolution of the Presidium of the RF Armed Forces of March 7, 2007.

Management organization - subscriber

The responsibilities of the utility contractor 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 (paragraphs "to" paragraph 49 of the Rules). In a letter dated 03.05.2007 N 8326-PM / 07, the Ministry of Regional Development explains: we are talking about contracts for the acquisition of all communal resources, the provision of which is possible based on the degree of improvement of the apartment building. Recall that according to the definition given in paragraph 3 of the Rules, a resource supplying organization sells communal resources. Obviously, here we are talking about an energy supply agreement.

Also, federal legislation contains a direct indication that management organizations are consumers of goods and services of utility companies in the field of electricity, heat, water, sanitation in apartment buildings, although they do not purchase them for themselves, but for provision to persons using premises in an apartment building<3>. In paragraph 89 of the Rules for the functioning of retail electricity markets during the transition period of reforming the electricity industry<4> it is noted that the utility contractor acquires electric energy from a guaranteeing supplier for the purpose of providing owners and tenants of residential premises in an apartment building with a communal electricity supply service, use for common house needs, as well as to compensate for electricity losses in house electrical networks on the basis of an energy supply agreement (purchase agreement sales of electrical energy).

<3> Subparagraph "a" of paragraph 17 of Art. 2 of the Federal Law of 30.12.2004 N 210-ФЗ "On the Basics of Regulation of Tariffs of Communal Complex Organizations".
<4> Approved by Decree of the Government of the Russian Federation of August 31, 2006 N 530.

Since managing organizations are not interested in acting as a subscriber under a resource supply agreement (this means responsibility for paying utility bills), they try 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 an energy receiving device that meets the established technical requirements and is connected to the networks of the energy supply organization and other necessary equipment. However, it seemed to the FAS SKO arbitrators that the electrical installations (power receiving devices) were transferred to the management organization (Resolution of the 18.01.2007 No. F08-7066 / 2006).

In addition, the Supreme Court of the Russian Federation does not agree with the statement that the relationship between utilities providers and resource-supplying organizations under utilities acquisition contracts to provide consumers with utilities cannot be attributed to energy supply relations because the contractor does not have an energy-receiving device (Definition of 18.12 .2007 N CAS07-660). The argument is this. In paragraph 2 of Art. 548 of the Civil Code of the Russian Federation clearly states: for relations related to the supply of water through the connecting network, the rules on the energy supply agreement are applied, unless otherwise provided by law, other legal acts.

Resolution of the FAS DVO dated March 16, 2007 No. F03-A51 / 07-1 / 199 is another example of an attempt by a managing organization to refuse subscriber status in a power supply agreement. In this case, the managing organization demanded that the contract with the heating network enterprise be declared invalid. Two justifications have been advanced. Firstly, the managing organization entered into this agreement under the influence of misconception regarding the nature of the transaction (Article 178 of the Civil Code of the Russian Federation): it acts as a party to it, 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, whose solvency depends on the receipt of funds from citizens. However, the arbitrators did not agree with the plaintiff's arguments: the agreement clearly expressed the intention of the parties regarding the type of agreement and the content of the contractual obligations.

This opinion is also curious: the court did not accept the company's arguments that the draft contract for the sale of electricity with a power sales organization does not take into account all the features of its intermediary position as a managing organization between a resource supply organization and a 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 the other party to the dispute (Resolution of the Nineteenth Arbitration Court of Appeal of 02.04.2007 No. A64- 3987 / 06-9).

Thus, the arbitrators agree that the management organizations must act as subscribers in the energy supply agreement. However, this is largely due to the approach formulated in the Rules. And what happened before the Rules came into effect?

Tipping date

Prior to the entry into force of the Rules (06/09/2006), when the Rules for the provision of public utilities, approved by Decree of the Government of the Russian Federation of September 26, 1994, No. 1099, were applied, the managing organization was not named among the public utilities. Recall that, in accordance with paragraph 1.1 of this document, utilities are recognized as enterprises that have a 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). Therefore, for example, if a housing and communal services organization entered into management contracts before 06/09/2006, they could well contain provisions on its intermediary role in providing public services to citizens.

It was this conclusion that the Seventeenth Arbitration Court of Appeal was guided by in the Resolution of 28.11.2007 N 17AP-7985/2007-GK. So, the administration of the city settlement as the owner of the premises in the apartment building filed a lawsuit demanding that the management contract for this house concluded by the owners of the premises with the managing organization on March 28, 2006 be invalid. The reason is the absence in the contract of such essential conditions as the obligation of the managing organization to provide utility services to the owners, their list and the amount of the fee. Since the defendant does not apply to organizations with a real estate fund 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 utility services, the inclusion in the contract of the obligation to provide utility services did not comply legislation in force at the time of conclusion of the contract. In other words, the management organization was not an executor of utility services and the corresponding task was not received from the owners.

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

Another noteworthy dispute is considered in the Resolution of the FAS FEBO of 13.11.2007 N F03-A51 / 07-1 / 4490. The resource supplying organization appealed to the court with a demand to force the managing organization to conclude an agreement on the supply of drinking water and the reception of wastewater. According to the plaintiff, the defendant is obliged to conclude a contract of sale of communal resources, since he is not able to independently produce them. As the arbitrators established, the managing organization entered into a management agreement of 09.01.2006 with the owners of the premises, the provision of utility services was not included in its subject. Moreover, this agreement establishes the obligation of the property owners to conclude agreements on the purchase of cold and hot water, electric and thermal energy and water 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 enter into an agreement. At the same time, the defendant’s obligation to conclude this contract is not provided for by applicable law and he did not accept obligations to conclude it. Accordingly, the requirements of the resource supplying organization were not satisfied.

Indeed, the obligation of the managing organization to conclude agreements on the acquisition of communal resources with resource-supplying organizations 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 managing organization to sign the contract, since such an obligation arises for the contractor only in relation to consumers of public utilities. In other words, only the owners of the premises are entitled to demand from the managing organization to conclude agreements on the acquisition 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. Managing organizations throughout the city refused to conclude contracts for the sale of communal resources with him and, accordingly, did not charge the population for these resources. However, the resource supplying organization was not entitled to interact directly with consumers - to collect fees from them. As a result, the resource supplying organization has accumulated large debts to its counterparties, which jeopardized the uninterrupted communal provision of the settlement. The problem was solved only with the participation of regional authorities.

Features of the energy supply agreement

According to paragraph 8 of the Rules, the terms of the contract for the acquisition of communal resources and wastewater (reception (discharge) of wastewater), concluded with resource-supplying organizations in order to provide consumers with public utilities, must not contradict the Rules and other regulatory legal acts of the Russian Federation. This norm was commented by the Ministry of Regional Development in two letters in connection with the numerous appeals of public utilities. In the first of them (dated February 13, 2007 N 2479-PM / 07) officials limited themselves only to general conclusions. Thus, the Housing Code and other legal acts take precedence over the norms of § 6 "Energy Supply" ch. 30 of the Civil Code of the Russian Federation. Other legal acts in this case include the Rules. Consequently, the provisions of paragraph 8 of the Rules are aimed at ensuring compliance with the terms of the contracts for the acquisition of communal resources and water disposal concluded by the utility services provider with the 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 agreements must comply with the requirements of the Rules.

It turns out that paragraph 8 of the Rules has extended the validity of this document, which according to their paragraph 1 regulates the relationship between providers and consumers of utility services, also on the relationship between the provider of utility services and the resource supplying organization. On the basis of clause 8 of the Rules, the utility contractor has the right to demand the establishment of parity terms of agreements with resource supplying organizations in accordance with the Rules by agreement of the parties, and in the absence of such an agreement - in a judicial proceeding.

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

Rules for using public water supply and sewage systems in the Russian Federation<5>;
Rules for gas supply to the Russian Federation<6>;
Rules for the functioning of retail electric energy markets during the transitional period of reforming the electric power industry;
norms § 6 ch. 30 of the Civil Code of the Russian Federation (to the extent not regulated by the specified legal acts).

<5> Approved by Decree of the Government of the Russian Federation of February 12, 1999 N 167.
<6> Approved by the Resolution 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 mandatory civil law standards that are cited by the Ministry of Regional Development in Letter No. 21492-SK / 07 dated November 29, 2007 and can be tabulated.

Paragraph of the Rules	Imperative requirements regarding:
3 - 6	identifying parties to a supply relationship utilities and the composition of utilities for which the consumer is responsible to the consumer, and not resource supply organization
7	features of the acquisition of communal resources and services wastewater disposal by owners of premises direct control of an apartment building resource organization that is not responsible for maintenance of house engineering systems
9 - 12, Appendix N 1	coordination of utility requirements and quality requirements for utilities and services water disposal
15	tariffs for utilities and sanitation services, used for calculations of a resource supplying organization with performer - managing organization
16 - 34	the procedure for calculating fees for consumed in an apartment building house utilities and wastewater, the frequency of making such a payment (payment of heat energy is produced evenly, payment is actually consumed amount of heat is possible only with application of double-rate tariffs)
38	payment of utility bills only to the specified in the payment document the bank account of the contractor
54 - 59	the procedure for recalculating fees for certain types of utilities resources due to a temporary lack of consumers in occupied premises
64 - 74	the order of actions involved emergency dispatching service of a resource supplying organization, drawing up an act on the failure to provide utility services
60 - 63, Appendix N 1	the procedure for changing the size of the utility fee resources of inadequate quality or intermittently, exceeding the established duration
79 - 86	grounds and procedure for suspension or restriction of filing communal resources

As an illustration of the above, we present several situations. Section VII of the Rules for the use of public water supply and sewage systems in the Russian Federation provides for the possibility of terminating or restricting the supply of drinking water and (or) the reception of wastewater, in particular if the subscriber violates the payment deadlines. However, according to paragraphs. "e" p. 50 of the Rules, the utility contractor is entitled in the manner provided for in sec. X Rules, suspend and restrict the supply to the consumer only of hot water, electric energy and gas. Consequently, the contract for the supply of drinking water concluded between the organization of the WSS and the management company cannot contain conditions for the suspension or limitation of the supply of water in the event that the debt of the managing organization is formed. A similar conclusion regarding heating was made by the Presidium of the Armed Forces in the Review of Legislation and Judicial Practice of the Armed Forces for the IV quarter of 2006 (answer to question 28).

One more example. The rules for the functioning of retail electric energy markets during the transitional period of reforming the electric power industry contain one interesting point - under number 90. According to this norm, an energy supply agreement between a utility provider and an energy sales organization may provide for the right of an energy sales organization to receive payment for consumption by persons living in residential premises, electric energy directly from the owners and tenants of the respective residential premises. As we recall, in accordance with paragraph 38 of the Rules and paragraph 7 of Art. 155 LC RF, payment for housing and utilities is paid to the bank account of the managing 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, is contrary to the Rules, which means, according to the Ministry of Regional Development, is invalid.

Note. Considering the requirements of the managing organization on the settlement of disagreements under the contract of sale of electric energy with the energy sales organization, the FAS ЦО in the Decree of July 25, 2007 No. A64-3987 / 06-9 was guided not only by § 6 of Ch. 30 of the Civil Code of the Russian Federation and the Rules for the Functioning of Retail Electricity Markets in the Transition Period of Electricity Reform, but also the Rules.

So, we have to admit that the legislation offers management organizations only a contract for the sale of communal resources, but gives the right to conclude it on an equal footing.

E.V. Ermolaeva

Magazine editor

"Housing and utilities:

accounting and taxation "