Many citizens often complain that service and resource-supplying organizations often refuse to help in eliminating emergencies in their apartment on the basis that citizens have unpaid utility bills.
Here is just one example from real life: an elderly woman with her daughter and two granddaughters live in the old "Khrushchev" under a social contract. They, like many other Russians (quite, by the way, previously solvent ones), have accumulated quite a significant debt over the past two years in paying for utilities. And then one fine day they suddenly close the electrical wiring (which was laid in the last century during the construction of the house). Before the fire, thank God, it did not come, but the hallway and the bathroom remained de-energized. A responsible tenant, of course, first of all calls the dispatcher of the management company with a request for help. The representative of the Criminal Code in response to her states that employees will not leave at this address. Firstly, because at this address there are unpaid housing public Utilities. Secondly, this, they say, is not the area of responsibility of the management company at all, since the property is not common to the house, but the maintenance of the individual is carried out exclusively on a reimbursable basis. In a similar vein, representatives of the resource-supplying organization maintain their answer, to which the tenants call next.
"SP" asked the lawyers whether such a position of the representatives of the Criminal Code and resource supplying organizations in terms of current legislation? Or does the presence of debt to pay for the supply of one or more resources really doom the debtor to "isolation"?
Lawyer Oleg Sukhov believes that in this case one should recall the “Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings”, which were approved by the Government of the Russian Federation by Decree No. 354 dated May 6, 2011 No. 354 in general and paragraph 114 in particular.
“According to him,” the expert argues, “suspension or restriction of the provision of public services is by no means tantamount to termination of the contract containing provisions on the provision of public services. Accordingly, the rights and obligations of the parties, including the management company, cannot be terminated from the moment when the supply of a resource to the tenants-debtors is interrupted. In the aforementioned "Rules" there is also paragraph 122. Where it says that the suspension of the provision of public services should not lead to a violation of the requirements established by law for the suitability of residential premises for permanent residence.
In addition, he clarifies, so far no one has canceled the “Regulations on recognizing premises as residential premises, residential premises unfit for habitation and apartment building emergency and subject to demolition or reconstruction”, which were approved by the Russian Government on January 28, 2006 by Decree No. 47.
- The twelfth paragraph of the document states that the dwelling must be equipped with appropriate engineering systems, which include electric lighting, domestic drinking and hot water supply, sewerage, elevators, ventilation, heating, and so on. At the same time, in paragraphs 13 and 14 it is noted that the said systems must comply with sanitary and epidemiological standards, as well as be placed and installed in the manner prescribed by safety requirements. Accordingly, the employees of the management company were obliged to take measures to eliminate the malfunction.
Well, they were obliged, but, nevertheless, they did not. I wonder if the citizens of the debtors can in any way force the public utilities to take appropriate measures to eliminate the malfunction, and on the basis of what laws or regulations can this be done? Can the victims seek justice, say, in court, putting forward claims to public utilities for inactivity in the event of an accident? How big is the chance of success in this case?
Yes, Oleg Sukhov emphasizes, it is understood that tenants have the opportunity to file a civil lawsuit against the company serving their house. However, the chances of success in this case, in his opinion, are difficult to assess.
“On the one hand,” he argues, “the actions of public utilities clearly contradict the letter of the law. On the other hand, the existing judicial practice in cases of this kind is rather poor: debtors are actively trying to reduce the amount of debt or cancel it, but few of them still dare to insist on forcing the management company to fulfill the obligations prescribed in the contract.
But if a person has a completely legal right to something, but does not dare to insist on it, does it mean that he is afraid of something? Taking into account the fact that many regulations in the field of housing and communal services are too confusing, difficult to understand and often contradict each other, it can be assumed that people are afraid of just the imperfect legislation governing the relationship of debtors with repairmen. What are the “jambs” of the current legislative norms and is it really possible to somehow avoid them? Can representatives of the legal community offer any options for “resolving” such situations that should be taken into account by legislators in the future?
But just the same, the law itself quite clearly regulates the relationship between debtors and representatives of housing and communal services, summarize legal experts. What makes the conflicts that arise in this case acute and painful is the fact that both sides are often characterized by both complete legal illiteracy and absolute legal cynicism. And the main problem, many of them believe, is not the imperfection of the norms of the law, but three points: the lack of law enforcement practice, ignorance of the current legislation and outright disregard for its requirements.
The need to terminate the management contract apartment building occurs in managing organization, as a rule, when the price of the contractor's services rises, inflation rises, crisis phenomena in the economy, as well as when the owners are unwilling to agree to an increase in the cost of services.
In accordance with Part 8 of Article 162 of the LC RF, the termination of the management agreement is carried out in the manner prescribed by civil law. Exceptions are allowed if the provisions of the LC RF establish other rules in comparison with civil law governing the issues of amending and terminating the contract. In such cases, housing law applies.
The grounds and procedure for changing and terminating the contract are established by Article 450 of the Civil Code of the Russian Federation.
Amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract.
When the managing organization failed to reach an agreement with the owners, the contract may be terminated by the company in unilaterally if the terms of the contract provide for such a right. Typically, the contract contains provisions that allow the managing organization to refuse it, for example, if the house has fallen into disrepair due to circumstances for which it is not responsible.
Unilateral withdrawal from the contract
Most disputes between the owners and the management company arise in connection with the illegal refusal of the latter from the management contract. When deciding to refuse, the company refers to circumstances that do not allow it to provide home management services (for example, the unprofitability of its activities, lack of technical feasibility etc.).
Legislation allows unilateral change and termination of the contract, if it is provided for by the Civil Code of the Russian Federation, other laws or the contract (Article 450 of the Civil Code of the Russian Federation). Only the owners of the premises are entitled to take such an initiative on the grounds established by parts 8.1 and 8.2 of Article 162 of the Housing Code of the Russian Federation, as well as in cases determined by agreement of the parties. The law refers to such cases, firstly, the failure of the managing organization to comply with the terms of the contract. The decision to cancel the contract is made at the general meeting of the owners of the premises in the apartment building. Secondly, when the owners of the premises decided to choose or change the method of managing the house, if the management agreement was concluded based on the results of an open competition held by the authority local government. The owners can exercise this right after the expiration of each subsequent year from the date of conclusion of the management agreement.
For the managing organization, the Housing Code of the Russian Federation does not provide grounds for refusing to fulfill the contract for managing an apartment building. A unilateral refusal of the management company is also unacceptable due to the fact that the contract for it is public. According to paragraph 1 of Article 426 of the Civil Code of the Russian Federation, a contract concluded commercial organization and establishing its obligations to sell goods, perform work or provide services, which, by the nature of its activities, it must carry out in relation to each applicant ( retail, transportation common use, communication services, energy supply, medical, hotel services, etc.).
From the provisions of part 5 of article 161, part 4 of article 162 of the RF LC, in conjunction with article 426 of the RF CC, it follows that the management agreement for an apartment building is public for the management company in relation to the owners of the premises, since the conclusion of an agreement is mandatory for them if the organization is selected at the general meeting and the terms of the contract are the same for everyone. This conclusion is confirmed in judicial practice.
As follows from the ruling of the Constitutional Court of the Russian Federation dated 06.06.2002 No. 115O, the obligation to conclude a public contract, if possible, to provide the relevant services means that the executor’s unilateral refusal of obligations if it is possible to fulfill them (provide the relevant services) is unacceptable, since otherwise the requirement a law on the mandatory conclusion of a contract would lose its meaning and legal significance.
Thus, there are no legal grounds for unilateral refusal to execute the contract for managing an apartment building at the initiative of the managing organization.
Termination of the contract in court
At the request of the management company, the contract may be terminated in court, but only in case of a significant violation of its terms by the owners of the premises in the apartment building.
Violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when it was concluded. Such cases, in particular, include non-payment for the services of the management company more than twice in a row and the deterioration of the housing stock due to the fault of the owners. Today, such cases are practically not considered in courts, since management companies rarely resort to this method of protection due to the technical complexity of conducting a lawsuit, because all owners of premises in an apartment building will be the defendants. As a rule, managing organizations recover the debt to pay for the contract in court, and upon expiration of its validity, they refuse to prolong it.
Another one of difficult ways termination of the contract for the management company is considered to be provided for in Article 451 of the Civil Code of the Russian Federation - termination of the contract due to a significant change in circumstances.
If the parties have not reached an agreement on bringing the contract in line with the significantly changed circumstances or on its termination, the contract may be terminated by the court at the request of the interested party. In this case, several conditions must be simultaneously observed:
At the time of the conclusion of the contract, the parties proceeded from the fact that there would be no change in circumstances;
The change in circumstances is due to causes that the interested party could not overcome after they occurred;
The execution of the contract without changing its terms would violate the balance of property interests of the parties and would entail serious damage to the interested party;
It does not follow from the contract that the risk of a change in circumstances is borne by the interested party.
At the request of any of the parties, the court determines the consequences of termination of the contract, based on the need for a fair distribution between them of the costs incurred by the parties in connection with the execution of the contract.
The requirement to change or terminate the contract may be filed by the managing organization with the court only after each owner has received a refusal to propose to terminate the contract or has not received a response within the time period specified in the proposal, and in its absence, within thirty days (paragraph 2 of Article 452 of the Civil Code of the Russian Federation) .
When considering litigation, circumstances related to changes in the sphere of state regulation pricing; emergency state of the object of the contract; unpredictable inflation rates; a significant increase in the cost of materials and equipment provided by the contractor, as well as services provided to him by third parties.
There is also other jurisprudence on this issue. Thus, in the decision of the Federal Arbitration Court of the North Caucasus District dated March 31, 2009 in case No. A632036 / 2008C316, it is noted that the fact of losses is not a basis for terminating the contract. By itself, the fact that the managing organization incurs losses from the activities of managing an apartment building, in the absence of any circumstances indicating a change in the situation on the housing and communal services market, within the meaning of Article 451 of the Civil Code of the Russian Federation, does not apply to circumstances that allow terminating the management contract.
In accordance with parts 1 and 4 of Article 162 of the Housing Code of the Russian Federation, an apartment building management agreement is concluded with each owner of the premises and its conditions must be the same for everyone, therefore all agreements concluded by the managing organization are subject to termination.
After termination of the contract, the owners must elect another management company at the general meeting. If the meeting is not held within a year after the termination of the contracts, local governments are obliged to organize a competition for the selection of the managing organization.
Refusal of the management company to manage the apartment building
The Housing Code of the Russian Federation regulates in detail the rules and norms for the execution of the contract, which must be observed during the period of its conclusion. However, the main provisions for terminating the contract are not provided. Therefore, many questions arise, as a result of which apartment owners seek legal assistance. Legislative acts in the Housing Code only slightly relate to the Civil Code of the Russian Federation. At the same time, the type of conclusion of a contract for the management of residential high-rise building not provided. As a result, residents have various problems that need to be addressed immediately.
Is it possible to refuse the management company?
If the managing organization has raised the issue of raising the cost of utilities or does not provide proper functions, apartment owners have the right to refuse such a company. As the article of the Housing Code of the Russian Federation says, the termination of the contract is provided for in accordance with civil law. An exception may be the provisions of the Housing Code of the Russian Federation, when it establishes other rules and norms, in contrast to the articles in the Civil Region. If you do not know whether it is possible to refuse the services of a management company, you must act in accordance with the Housing Law.
How to refuse a management company - step by step instructions
The management company can independently terminate the contract with the owners of the apartment building if they do not satisfy its requirements. If the owners of the property in a particular house wish to refuse, the following must be done:
- An appropriate decision to cancel the service must be made before the end of the contract.
- If you do not make it in time, the contract will be extended. As a result, the cancellation procedure can be started no earlier than after 12 months.
- Hold a meeting of all residents in the building.
- Each of them must receive a copy of the application for termination of the contract in writing.
- Protocols are sent to the governing authorities.
Only after the above actions, the refusal will be formulated in accordance with the legislation of the Russian Federation.
How to abandon housing and communal services and create an HOA?
Many believe that the creation of a partnership of owners will take a very long time. In today's practice, this process can take up to six months. But as you know, nothing is impossible. Many houses are already registered as HOAs. It was done by ordinary people.
If difficulties arise in the process of using an apartment building, Housing Lawyers will come to the rescue, who understand every little thing. Therefore, if you do not know how to properly refuse the services of a management company, lawyers are at your disposal.
List of documents
If you do not know what is needed in order to refuse the management company, provide the following list of documents:
- The contract, which was signed by both parties: the owners and the management company;
- meeting minutes;
- A statement that tenants are refusing services provided by the housing organization;
- Evidence that the apartments belong to the owners.
If there are problems with the management company, it can be changed in an expedited manner.
Sample application for refusal of services of a management company
Registering for another CC is easy. Organize a group of residents with whom you can hold a meeting. It will decide whether a change of organization is necessary and which is the best. During the negotiation process, a written protocol is drawn up. The main thing is to express a common opinion and that other participants in the meeting support it. So that you do not become a victim of scammers, study the numerous reviews about it that are present on the Internet. Many services of the Criminal Code are provided both for a fee and free of charge. You can download a sample application for refusal of services of a management company here.
Is it possible to abandon the management company and not choose a new one?
If the Managing Organization is abandoned, it is imperative to select a new institution that you trust. If the concluded contract has lost its legal force as a result of the expiration of the term, the refusal of services is easy. That's why best option- Wait for the expiration date. But there are circumstances that entail the early cancellation of the services provided by a particular management company. For example, she does not fulfill her basic obligations and avoids housing issues. You can opt out and start the HOA process.
The procedure for the management company to refuse to manage the house
The Housing Code of the Russian Federation does not provide for articles that indicate the grounds for refusing to execute an agreement with concrete house. She cannot refuse for the reason that the contract is a public matter. Such is the contract that was concluded with the organization for the provision of services, including the sale of goods, the performance of work, and so on.
In what cases can the management company refuse to manage the house?
The company cannot independently abandon the apartment building. If necessary, she is given only the right to cancel curation. final decision accepted by the owners. If the organization goes to court, then the contract can be terminated by a court decision forcibly. If the owners reject such a proposal, then the contract continues to be valid and the management company should be responsible for fulfilling its obligations.
If the Criminal Code has ceased to fulfill its obligations, regardless of the decision of the owners at the general meeting, they have the right to apply to the judicial authorities with a corresponding complaint. The letter must include a description of bad faith behavior and non-compliance with contractual obligations. If the court decision is made in favor of the owners, they will receive moral compensation in monetary terms.
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Oksana
Hello! We want the whole house to abandon the Management Company. How to do it right? Where to begin?
How can the management company refuse to manage the house, and what should the tenants do?
Often between the owners and representatives of the management company runs the so-called black cat. Parties not satisfied with cooperation with each other for a number of reasons.
It seems to the owner that the management company is not coping with its duties. In turn, representatives of the management company complain that the owners improperly fulfill the clauses of the contract.
Very often we are faced with the termination of the contract between the parties due to the refusal of the owner to cooperate. Rarely are there situations where the management company itself can take actions to terminate the contract.
Does the management company have the right to refuse to manage the house? In what case this can happen, what will entail, and most importantly, how to avoid such an incident, we will tell in our article.
Can the management company refuse to service the house?
The management company is the body that undertakes to maintain an apartment building.
It is unlikely that the owners themselves could cooperate and properly maintain the building.
Therefore, such actions are special organizations in which the contract is drawn up.
Residents receive services that they carry out systematically, the management company receives payment for its services. Everything is fair.
However, sometimes a situation arises that forces the management company to demand termination of the contract. Very often they are connected with the fact that the residents, one way or another, violate the rights of the management company.
Causes
Can the management company unilaterally terminate the contract? Let's look at the main reasons why may be grounds for terminating the contract. management at the initiative of the managing organization.
First of all, let's talk about such an important process as licensing. Each management company must get a license to carry out their activities. Such a norm, prescribed by law, is a prerequisite for the functioning of the organization.
Therefore, often managing organizations that do not want to break the law in front of the owner, in case they have not passed the licensing procedure, they independently inform the tenants about this.
At the same time, they themselves are the initiator of the break in relations. But, unfortunately, there are very few such companies, and often, as follows from judicial practice, it is easier for a company employee operate without a license, rather than refuse to pay for their work.
Very often this happens because all the money that was collected by the residents, or otherwise received in the form of grants, was spent on any home improvement activities.
Or, at all, unscrupulous employees appropriated the money for themselves. In view of the lack of funds to carry out the work, the management company declares itself bankrupt, and independently initiates the severance of relations with the apartment building.
Sometimes employees of the management company tired of interacting with residents. Sometimes their demands are inadequate, do not correspond to reality, they can be fulfilled.
The same applies to the situation if tenants do not comply with the terms of the contract, which prescribe their duties in relation to the management company. For example, tenants refuse to pay for the use of resources, as well as for the maintenance of an apartment building. Not receiving payment for their work and efforts, the management company is forced to break off relations with the tenants.
There are many more reasons that can become grounds for breaking up a relationship. If you need more detailed coverage of the issue, we recommend that you acquainted with judicial practice on this issue.
You can find out about what management of an MKD by a management company is, as well as about the advantages and disadvantages of a management company over other forms of management, on our website.
Step-by-step instruction
How can the management company refuse to manage the house? Now that we have listed all the reasons, we will resort to studying a step-by-step procedure for terminating the company's relationship with residents.
- First of all residents must be notified. that the rupture of relations is coming soon. To do this, employees of the management company must initiate a meeting. They must notify tenants appropriately of when and where the meeting will take place.
- Further, during the meeting, employees of the management company should announce the reasons that led to this decision.
A month later after the company filed applications for termination of relations with the relevant authorities, the relationship was terminated.
Read our article about the cases in which the management company has the right to issue instructions to the owners.
Grounds for termination of the contract unilaterally
As we have already listed above, grounds are as the inability of the management company to carry out its activities due to own reasons, for example, bankruptcy or lack of a license, as well as non-fulfillment by the owners of the clauses of the agreement, for example, payment of bills for HOA services.
The documents
Management Company submits all documents, which were conducted to her for a long time by the tenants.
These include plans, progress reports, financial documents, accounting, and contracts with resource organizations.
In addition, the management company must provide the owners home account statement about how much money is left at the disposal of residents.
The management company itself leaves a corresponding statement, which it sends to the most important authorities that control its activities.
Consequences for residents
The management company refused to manage the house: what to do? After the contract is terminated, the management company takes final steps in place.
BUT can ask the administration for help, if within one calendar month they cannot decide who can serve their home.
In any case, the decision on how the choice of the method of managing common house property will be made should be made with the owners at a general meeting.
Otherwise, if an agreement is not reached, and the owners simply cannot get together, the administration will decide everything for them. However, in this case, persons will not be able to express their opinion, and also choose the right manager.
Therefore, if you do not properly treat your managing organization, resort to your duties regarding the choice of the MC.
Management staff may also refuse to cooperate with you, protect your reputation, and also get only positive emotions from cooperation.
Therefore, be vigilant and act in accordance with the agreement that was drawn up when instructing the managing organization to service your home.
You can learn about what the refusal of the management company to service the house can lead to from the video:
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In connection with the increase in tariffs for the maintenance of the house, homeowners refuse the increased tariff. Can the management company refuse to maintain the house?
It is not the Criminal Code that cannot refuse to keep the house, since other tenants, or rather the majority, agree. This means that the management company can only sue those tenants who refuse the tariff. Or they can refuse the services of the Criminal Code.
Can the management company refuse to manage the house?
Any person living in an apartment building has an idea of who ensures cleanliness in the entrances, the operation of elevators, and ennobling adjoining territory and prevent leaks in the roof.
Sometimes we get so used to these everyday benefits that civilization has provided us that we completely forget how valuable the work of employees of management companies is.
We wake up only when we encounter a direct denial of service. Let's see if the management company has the right to refuse to service the house, while terminating the legal relationship with the consumer.
If you would like to know, or call us on phones:
Can the UK refuse to service the house
Do house management companies have the right to terminate the management contract concluded with each of the owners of premises located in an apartment building? Of course not. Now let's look at why.
In accordance with Part 8 of Article 162 of the Housing Code of the Russian Federation, any kind of changes or termination of contracts for the management of an apartment building are carried out strictly in the manner indicated in the civil legislation of the Russian Federation.
Article 450 of the Civil Code of the Russian Federation tells us that such actions can be performed only by mutual agreement of the two parties, unless, of course, other conditions are provided for by law.
Can the management company raise rates, read here.
Unilateral termination of the management agreement is possible only in court. The basis for the consideration of the case in court is an application filed by one of the parties concerning:
- Gross violation of contractual terms;
- In other cases, which are provided for by the Civil Code of the Russian Federation, an agreement or other laws.
There is also Article 310 of the Civil Code of the Russian Federation, which indicates a direct prohibition of the unilateral refusal of the Criminal Code to fulfill the obligations assigned to it by the management agreement, with the exception of cases provided for by law.
These include circumstances in which the situation has changed significantly, from which users and the management company proceeded initially, at the time of signing the agreement.
Part 8.2 of Article 162 of the Housing Code of the Russian Federation mentions the right of the owners of premises located in the house to unilaterally terminate the contract under which management is carried out, in accordance with the decision taken at the general meeting.
However, the presence of a key condition is necessary - the fact that the Criminal Code fails to fulfill its own contractual obligations. At the same time, residents have the full right to decide whether to choose a different management company, or even change the method of managing the house in which they live.
Summarizing the above, we can conclude that the law provides for the unilateral termination of the management agreement, however, only at the initiative of the owners of the premises located in the house, based on the decision of the OSS.
If we talk about the Criminal Code, then she has no such right.
For what reason does the Criminal Code not have the possibility of unilateral termination of the house management contract?
Of course, the owners of the premises in the house initiate the process of terminating the contract with the Criminal Code only if the latter cannot cope with its obligations.
However, the management company may also want to terminate the contract with the tenants of the house, especially if the tenants accumulate significant debts for residential services or if the owners of the premises express disagreement about the increase in the price of the services provided.
In the same way, the idea of terminating the agreement on the basis of which the house is managed may arise for the management company if the price of services provided by the contractor rises, the inflationary process or economic crisis progresses.
In some cases, if the Management Company has not found a compromise with the residents of the house, the management agreement can be terminated unilaterally by the company, when the terms of the contract themselves provide for such a right.
As an example, we can consider the situation when the MKD became emergency, due to circumstances beyond the control of the management of the Criminal Code, the change of which is not possible in the future.
Other cases prohibit the Criminal Code from unilaterally waiving obligations, since the contract itself refers to documents of a public nature. The provisions of part 5 of article 161, part 4 of article 162 of the Housing Code of the Russian Federation are closely intertwined with article 426 of the Civil Code of the Russian Federation and indicate that the contract through which the house is directly managed is public for the management company in relation to the owners of premises located in residential building.
All this proceeds from the fact that the signing of a management agreement for residents is mandatory if the management company is elected by the decision of the general meeting of the owners of the premises in the house, under the same control conditions for each.
In the ruling of the Constitutional Court of the Russian Federation under No. 115-o of June 06, 2002, it is said that there is an obligation to conclude a contract of a public nature, if it is possible to provide a certain list of services.
This means that there should not be a unilateral renunciation of one's own obligations if there is the possibility of their fulfillment. Under other circumstances, the legislative requirements relating to the obligation to conclude a contract lose their meaning and status.
Summing up the above, we can make a confident conclusion that the law does not provide for the legal possibility of refusing to fulfill the terms of the contract for the management of MKD unilaterally and at the initiation of the Criminal Code.
What to do if the UK abandoned the house
From the moment when the Criminal Code announced the early termination of their own powers, residents are required to decide on the election new organization. To do this, the housing inspectorate, local authorities and the media are notified in order to notify of a meeting where the election of the Criminal Code will be raised, and where representatives from the Criminal Code can propose their own candidacies.
All applications must be sent to the MLA and the elected representative of the owners. Each of the representatives of the Criminal Code is obliged to familiarize the residents of the house with the types of their activities and the conditions for the provision of services, conducting a kind of campaigning activities.
More than half of the tenants of an apartment building must be present at the meeting. It is they who, through voting, elect the most attractive of the proposed management companies.
If less than half of the total number of owners of the premises of the house turn up, the meeting is automatically rescheduled.
When, based on the results of the actual voting, none of the MCs has received more than 50 percent of the votes, the meeting is also rescheduled. If the management company is nevertheless elected by the tenants, the parties discuss issues related to management, followed by the conclusion of a separate agreement.
The management company that terminated the agreement is obliged to transfer to the newly elected company all the documentation related to the management of the MKD, issue a report on costs, as well as balances on the personal accounts of residents.
In addition, the outgoing company has the right to recommend contractors for certain types of work.
At this stage, the procedure for electing a new Criminal Code is over. A copy of the concluded agreement is kept by the owner, the second is deposited in the office of the new management company.
If you want to know how to solve exactly your problem - contact the online consultant form on the right. It's fast and free! Or call us at phones:
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Can a management company unilaterally refuse to manage an apartment building?
Currently, lawyers receive a lot of questions about whether the management company is legally acting, threatening to refuse to service an apartment building for some reasons, in particular:
The house is dilapidated or emergency;
Residents of the house at a general meeting refused to raise fees for maintenance and repairs.
At the same time, the management company reasonably argues that no one else will serve this house, and the house will finally crumble, i.e. blackmailing tenants.
The prosecutor's office and the housing inspection of Lipetsk are silent. But an explanation on this score was given by the prosecutor's offices of other regions. So, below is an explanation of the prosecutor's office of the Novgorod region.
In accordance with Part 8 of Article 162 of the Housing Code of the Russian Federation, the change and (or) termination of the contract for managing an apartment building is carried out in the manner prescribed by civil law.
In accordance with Article 450 of the Civil Code of the Russian Federation, modification and termination of the contract for managing an apartment building is possible by agreement of the parties, unless otherwise provided by the Civil or Housing Code of the Russian Federation, other laws or an agreement. At the request of one of the parties, the contract may be amended or terminated by a court decision only:
1) in case of a material breach of the contract by the other party;
2) in other cases provided for by the Housing or Civil Code of the Russian Federation, other laws or an agreement.
In accordance with Article 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation and a unilateral change in its terms are not allowed, except as provided by law (for example, in the event of a significant change in the circumstances from which the parties proceeded when concluding the contract).
Part 8.2 of Article 162 of the Housing Code of the Russian Federation provides that the owners of premises in an apartment building, on the basis of a decision of the general meeting of owners of premises in an apartment building, unilaterally have the right to refuse to execute an apartment building management agreement if the managing organization does not comply with the terms of such an agreement, and decide on choosing a different managing organization or changing the way this house is managed.
In other cases, the management agreement may be terminated either by agreement of the parties, or in court at the request of one of the parties to the agreement. Thus, from the analysis of the above legal norms, it follows that the law provides for a unilateral procedure for terminating an apartment building management agreement only at the initiative of the owners of premises in an apartment building based on a decision of the general meeting of owners of premises in an apartment building and does not provide for a unilateral procedure for terminating an apartment building management agreement on initiative of the governing body.
What to do if the managing organization wants to stop servicing your home?
First, write a letter addressed to the head of this managing organization with the above text - an indication that unilateral refusal of management is not allowed.
Secondly, write a complaint to the State Housing Inspectorate of your region and to the district prosecutor's office with a request to issue a warning to the management company about the inadmissibility of a unilateral refusal.
And, most importantly: do not sign any papers that the management company can slip you. Do not participate in the general meeting of residents and notify the Criminal Code in advance in writing that you do not intend to participate in the meetings.
Look for CC violations regarding home maintenance and feel free to file a written claim with her!
Do not be afraid to sue the management company and complain about its slightest violations!
Are you satisfied with the work of your management company?
Nikolay Valerievich! So the MA assumed that it would be enough of the funds that this MA would receive from the owners and tenants of residential premises for the management of MKD, maintenance and technology. repair of his common property.
But the circumstances have "significantly changed" (rising prices, shortages of workers and specialists, etc.).
Here, based on this, the MA is trying to "leave home", justifying the termination of the management agreement unilaterally.
So let them try to terminate the management agreement in court, proving all the facts mentioned.
A lot will be revealed in court.
The administration must announce an auction to select a managing organization. In addition, according to the housing legislation, the administration is obliged to assist the owners in the creation of an HOA. Direct control is the worst option for managing a house. The best way- This is the creation of the HOA. Management organizations are commercial structures and their goal is profit. HOA- non-profit organization and she has no goal in profit. All incoming money to the HOA should be spent only on the needs of the owners of the HOA.
Why is it justified? There is just no reason for management companies to make such statements. An apartment building will not remain without management. In case of cancellation or termination of the management contract, the local government is obliged to appoint a management company for the house. Article 161 of the LC RF.
Agree. But how long does the competition last?
What will happen to the common house property during this "competition"?
Yes, nothing like that will happen. Maybe they’ll sit for a bit without utility services, if the riser breaks or some other misfortune, but the house won’t fall apart))
I can argue about this.
In Lipetsk, in the areas of the Experimental Station and the Tractor Plant, houses fell apart.
How long did it take to fall apart? Did they crash right down? In our country, even under the current management agreement, "pieces of wood" are steadily coming off the piles. Citizens are settled in a mobile fund.
I can't say about the timing.
Exactly. Literally.
And there is another side. OK, when we are talking about the regional center or other large city.
And what about the residents of villages and / or regional centers, in which the management company, as a rule, is one - the local "communal farm".
And another UK means that on any issue you will have to ride 40-50 kilometers to another city. Went through this too. Yes, a nonresident management company opened an office in the district center, hired a dispatcher who is constantly at school, then at a meeting in the head management company, then at a planning meeting, then on time off, then on sick leave.
In practice, the administration, with a single management company in the locality, takes control.
Currently, a license is required to carry out activities for the management of apartment buildings. You forgot?
Or does your district administration have it?
Until a new managing organization is determined, the management of the MKD is carried out by the former managing organization. If she does not do this, you must contact the Housing Inspectorate. It is possible to recover moral damages, a penalty under the law on consumer protection, and also collect a fine from the previous managing organization for failure to manage the house.
Our management organization did not serve our house. We wrote to the housing inspector. He wrote them an order and ordered them to service our house at the rates that we ourselves, the owners, approved - 20% less than the management organization offered. next year, we approved the tariffs for the maintenance of our house even less - by 50%. The management organization filed a lawsuit against us to terminate the management agreement with us. But she didn't complain to us. The court refused, the managing organization because. she violated the pre-trial procedure for the consideration of the dispute. The ruling organization appealed the decision of the district court, but the appellate instance upheld the decision. For 2016, the owners at the meeting approved a tariff 70% cheaper. The managing organization challenged this decision in court, but the court took the side of the owners and dismissed the claim of the managing organization. Now we are waiting for the decision to enter into force. If he appeals, we are confident that we are right, the law is on the side of the owners. Don't be afraid and fight. We must act together.
The former managing organization may:
b) to be simply "abandoned" by the founders and excluded from the Unified State Register of Legal Entities;
c) voluntarily liquidate;
d) lose your license.
The next stage awaits you - bankruptcy or voluntary liquidation of the management company.
This is the LLC authorized capital 10000 rubles.
Agree. EVERYTHING is correct. This is what the UO-"rogues" do, and even the funds are stolen from the account.
This is an LLC with an authorized capital of 10,000 rubles
This is if this UO was created for a couple of houses. at uo, house manager where I live, there are 81 houses under management. I do not think that even if not one, but several houses, are indignant about the tariffs, then they will run bankrupt.
So I believe that the MA again did not comply with the pre-trial procedure for resolving this situation. Stupidly, this UO acts and steps on the same "rake".
I believe that this MA will gain experience and will solve the issue of managing your MKD.
I propose to discuss the Order of the Ministry of Construction of December 25, 2016 No. 937 / pr "On approval of the Requirements for the execution of minutes of general meetings of owners of premises in apartment buildings and the Procedure for transferring copies of decisions and minutes of general meetings of owners of premises in apartment buildings to the authorized executive bodies of the constituent entities of the Russian Federation that carry out state housing supervision" (entered into force on 29.04.2016). In particular, the register of owners indicating the details of registration of ownership as a mandatory annex to the minutes of the general meeting of owners. Such a register is possible only if the initiator of the meeting of the HOA/ZhSK and all owners of the MKD are their members. How about the rest? Is it possible to compile such a register for the initiator of the meeting - one or more owners of MKD. The owners do not want to voluntarily disclose this information, there is no point in asking the Registry - it does not have complete information on all owners, and the service is not free. Plus, there are heir owners who, having a certificate of inheritance, do not register their ownership. Plus, in any house there are "uninhabited" apartments, the owners of which live elsewhere, ignore everyone and everything, and do not participate in meetings. The absence of this register makes the decision of the general meeting invalid; there is already judicial practice in some regions. How to protect yourself from non-execution by the management company of the decision of the general meeting of owners? And is there any point in holding general meetings of owners of MKD premises now?
There are frequent cases when apartment owners and employees of the managing organization cannot find mutual language. Both of them are dissatisfied with each other for several reasons. Owners of residential premises often believe that the management company does not fulfill its obligations. But they also receive statements from employees of the managing organization about improper fulfillment of the terms of the contract. Is it possible for the UK to refuse the MKD? What should tenants do if the management company refuses the house?
What are the reasons for the management company to abandon the house
The responsibilities of the managing organization include the maintenance of MKD. The owners of apartments themselves could not provide proper maintenance of housing. Therefore, it is necessary to conclude a service contract with organizations created specifically for this.
The managing organization provides the owners with the necessary services on a regular basis, for which they must pay according to the approved tariffs. It happens that the Criminal Code has to put forward a demand to terminate the contract. One of the reasons for this is the violation of her rights by the tenants.
The management company may take the initiative and terminate the contract with the owners on the basis of various reasons. The main ones will be discussed below. Let's start with licensing, which is a very important process.
- No license
All operating organizations must obtain a license for the right to carry out activities. This is a legal requirement. The presence of a license is a prerequisite for the functioning of the Criminal Code. Often, newly created organizations cannot get permission to operate the first time, because they do not have experience in this industry. You can go through the licensing procedure for several years. In this regard, some management companies inform the tenants that they have not received a license and that the agreement concluded earlier must be terminated, otherwise their activities will be recognized as illegal.
However, there are not many honest organizations. Judicial practice shows that often the employees of the management company continue to provide services to the owners, even if the company does not successfully pass the licensing procedure.
- Bankruptcy
A company can go bankrupt if it spends all the funds paid by the owners (or subsidies provided by the state) to carry out home improvement activities. Such an outcome is also possible in the case of appropriation by employees of the MA of money for themselves. You can declare bankruptcy if you do not have the funds necessary to provide services to residents. In this case, the organization itself declares the need to terminate the contract with the MKD.
- "Problem" houses
There are situations when the management of an apartment building is inefficient, because the owners do not pay for the maintenance services provided to them on time. At the same time, the company cannot make fundamental decisions on the improvement and maintenance of MKD, therefore, it becomes the initiator of the termination of the agreement on the maintenance of an apartment building. To do this, she needs to know how to terminate it unilaterally.
It happens that the employees of the managing organization cannot satisfy all the requirements of the owners, because they are inadequate, not justified, or simply there is no way to fulfill them. Then, in order to avoid conflict and unnecessary problems the management of the management company decides to terminate cooperation with the tenants. A similar situation is also possible in case of non-compliance by the owners of the terms of the contract in terms of their obligations in relation to the Criminal Code. For example, the refusal of tenants to pay for the resources and services provided to them for the maintenance of housing may become the basis for terminating the contract. If the managing organization cannot collect payment on time, then it is forced to terminate relations with the apartment owners.
The management company can refuse to fulfill the terms of the contract unilaterally only in a few cases. In each of them, it is necessary to take into account the specifics of the management agreement according to the totality of the norms of housing and civil legislation.
In what order the management company refuses the house
If the management company refuses to service the house, the owners must be notified of the proposed termination of the contract. To report this, the MC must organize a meeting of residents, reporting the time and place of its holding. At the meeting, representatives of the managing organization must inform about their decision and voice the reasons that contributed to its adoption. Without fail, the company must offer residents options for reaching consensus (mediation procedures).
An attempt should also be made to resolve any disputes with tenants. If the owners are not interested in this and refuse to comply with the requirements of the managing organization, then the only way out is to terminate cooperation with them.
- The secretary must draw up the minutes of the meeting, at which its participants sign.
- The MA applies to the local administration with a statement indicating why it was decided to stop cooperation with the residents.
- Then the acceptance of the house and the common house premises by the owners is carried out, for which they, together with the management company, draw up an act.
- After Goszhilnadzor, local housing and tax inspection, representatives of the Criminal Code must submit all Required documents because they exercised some degree of control over the financial and economic activity companies. Therefore, there is a need to notify them of the termination of the provision of services for the maintenance of residential premises in an apartment building.
- After the application has been submitted, the MA may begin the liquidation of its office. Owners must decide within a month who will manage their home. During this time, employees of the managing organization must complete all work in progress. After that, the tenants take over the premises from the company and transfer them to the management of another management company.
Attention!
If within 30 days the tenants have not decided who they will entrust with managing the house, the choice of the company will be made by the administration. A month after the application for termination of cooperation with the owners of residential premises, relations with them are broken off.
Unilateral termination of the contract is possible only if the managing organization can no longer provide residential premises maintenance services to the owners for the following reasons:
- the company is bankrupt or has not passed the licensing procedure;
- apartment owners do not fulfill the terms of the contract (for example, they do not pay for services).
Employees of the Criminal Code, when carrying out its activities, maintain various documents, which, after the termination of cooperation, are transferred to the owners. These are plans, progress reports, financial documents, as well as accounting, contracts with companies providing resources.
The managing organization must inform the tenants how much money is left at their disposal, for which they will need to make an account statement at home. In the bodies exercising control over the activities of the company, it sends an application of the appropriate form.
After termination of the contract, it is necessary to carry out all final activities. Owners must choose who will continue to manage their home. One of the options is to again hold elections with the participation of employees of other organizations, during which they will decide on the management company. If a decision is not made within 30 days, you can ask the administration for help to appoint a new manager.
Thus, the tenants at the general meeting must agree among themselves on the way in which they will choose a new managing organization. If the residents cannot agree or even organize a meeting, the decision will be made by the administration. This means that the opinion of homeowners will not be taken into account and they will not be able to conclude an agreement with a good manager. Residents have the right to choose a new management organization if they are not satisfied with the performance of their company.
Also, the Criminal Code can initiate the termination of relations with the owners of residential premises if they do not fulfill their obligations.
How should the refusal of the management company from the MKD be legally executed?
Concluding a contract with new buildings should be in a special order. The construction organization may not wait for the administration to hold an open competition among management companies and conclude an agreement independently with one of them at its discretion. This right is spelled out in part 14 of Art. 161 of the Housing Code. Such an agreement is concluded for a period not exceeding 3 months. After an open competition, tenants must conclude an agreement with the selected MA, according to which it will manage the MKD, without fail.
Often such a scheme is not implemented. If the developer concludes a contract for the management of MKD on their own, the administration reports on the successful implementation of the management method, without organizing an open tender. Such actions are a violation of the requirements of the Housing Code of the Russian Federation. Attempts to stop them are made by housing inspectorates, as well as the Federal Antimonopoly Service, but there are contradictions in judicial practice.
It is problematic to terminate the management contract if many people take the side of the owners of MKD residential premises.
If the MA is the initiator of the termination of cooperation, then the following options for terminating the contract are possible.
1. By mutual agreement
In paragraph 1 of Art. 450 of the Civil Code states that the contract can be terminated with the consent of both parties. To do this, it is necessary to conclude an agreement, the form of which is the same as that of the contract. It is also necessary to sign it with the same persons as the contract (clause 1, article 452 of the Civil Code of the Russian Federation).
You can sign the agreement at a general meeting of tenants, which is convened by the managing organization. This right is provided for by Part 7 of Art. 45 of the Housing Code. If an agreement is reached at the meeting, then the Criminal Code concludes an agreement with the owners of the MKD premises. More than half of all tenants must sign it. This can be done according to a simplified procedure, if the owners give the chairman of the house council the appropriate powers (allow him to conclude an agreement, amendments and agreements to it on his own behalf).
If entrepreneurial activity is carried out only by one of the parties to the contract, then it can refuse to fulfill its obligations unilaterally (according to paragraph 2 of article 310 of the Civil Code).
2. With the involvement of an arbitrator
The management company may demand termination of the contract by applying to the court in the following cases:
- if the tenants significantly violated the terms of the contract (subclause 1, clause 2, article 450 of the Civil Code of the Russian Federation);
- if circumstances have changed significantly (clauses 2-4 of article 450 of the Civil Code of the Russian Federation);
- in other cases prescribed in the contract (subclause 2, clause 2, article 450 of the Civil Code of the Russian Federation).
In this situation, it is necessary to try to resolve the conflict before the court. The party wishing to terminate cooperation must notify the opponent, indicating at the same time how soon a response should be sent. This information may also be contained in the management contract. In case of its absence, the term for receiving a response is 30 days.
The party that initiated the termination of the relationship may apply to the judicial authority only if it does not receive a response within the agreed period of time or in case of refusal.
In court, you will need to prove that the pre-trial procedure for resolving the dispute was observed. To do this, you will have to provide correspondence, existing claims and notifications, etc. This is the order of the higher courts. The judicial authority will consider the requirement to terminate or amend the contract if the plaintiff proves that he has taken all necessary measures to resolve the conflict with the defendant, which are provided for in paragraph 2 of Art. 452. This is stated in paragraph 60 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 07/01/1996.
2.1. Material breach of contract
One of the significant violations of the terms of the contract is non-payment for the maintenance of MKD.
If, as a result of non-fulfillment of obligations by one of the parties under the contract, the other party suffers significant damage, that is, it does not receive in full what was prescribed in the contract, then such a violation is recognized as significant.
The managing organization can serve the MKD only after it has passed the licensing procedure. This requirement contains part 1 of Art. 192 of the Housing Code. Entrepreneurs carry out maintenance of residential premises in order to make a profit, which is reflected in paragraph 1 of Art. 2 of the Civil Code of the Russian Federation. Therefore, when concluding a management agreement with the owners, the management company must draw it up in such a way that, if the tenants fulfill all its conditions, the activity is at least break-even.
However, if the company suffers losses, this does not mean that it has the right to demand the termination of the contract with the owners. The basis for this may be specific actions (or lack thereof) of the tenants that caused losses. For example, it may be non-payment for a long time (or systematic).
If the owners do not pay for the services provided by the company in full or not on time, this may lead to its inability to continue to maintain the residential premises of MKD, pay for work and services provided by contractors, and settle accounts with companies supplying energy resources. In such a situation, the Criminal Code may require unilateral termination of the management agreement.
Such cases are rarely considered in courts, since the plaintiff is not always able to collect all the necessary evidence.
2.2. Significant change in circumstances
If, under the changed circumstances, the Criminal Code and the owners would not have entered into an agreement or its terms would have been revised, then it is considered that the change in circumstances was significant.
Common similar situation- recognition of the state of an apartment building as emergency. In this case, when submitting an application to the court, you must provide evidence that:
- the house is recognized as emergency, it must be demolished or it is subject to reconstruction;
- the condition of the house deteriorated to an emergency not due to the activities of the managing organization.
There is a certain procedure in accordance with which it can be recognized that the house is in disrepair and needs to be demolished. This is spelled out in the Decree of the Government of the Russian Federation of January 28, 2006 No. 47.
The package of documents should include an expert opinion on what caused the deterioration of the house to an emergency. This is confirmation that the fault of the management company in what is happening is not.
To date, the judiciary is more likely to side with the tenants. At the same time, the court obliges them to organize a general meeting to develop and approve an updated list necessary work, as well as calculating their value taking into account changed circumstances. This decision allows to start a constructive dialogue with the owners of residential premises and develop new provisions of the management agreement.
Expert opinion
Example from jurisprudence
Olesya Leshchenko,
Executive Director of the Association of Managing Organizations "Comfortable House"
The bearing wall of the building was damaged, and the Criminal Code filed an application with the court demanding to terminate the management agreement (See the decision of the Federal Antimonopoly Service of the Volga District of July 4, 2013 in case No. A12-21194 / 2012).
According to the information provided by the management company, during the entire term of the contract, the tenants did not take part in resolving issues related to the overhaul, although they were required to do so in accordance with the law. Consequently, the owners did not fulfill their obligations.
The plaintiff reported that he would continue to service the house, which was in disrepair, without the participation of the tenants in the adoption necessary decisions impossible.
However, the court sided with the defendant. Although the house is in disrepair, the MA must continue to service it. There were no significant changes in circumstances that would allow termination of cooperation. The court ruling was as follows: due to the fact that the condition of the house is emergency, the owners are obliged to take additional measures to preserve it, however, there are no grounds for the automatic termination of the contract in this case, since the owners still live in the MKD and they need to provide services for the maintenance of residential premises.
2.3. Other grounds provided for by the contract
The Housing and Civil Codes do not provide for other situations in which the Criminal Code has the right to demand unilateral termination of the contract. The LCD states that the procedure in accordance with which changes are made to the contract, as well as the procedure for terminating it, are not its essential conditions.
When concluding a contract, it is desirable to indicate in it not only the order in which it can be supplemented, changed, terminated, but also the consequences of early termination of cooperation.
As a rule, managing organizations do not do this, as evidenced by the results of the study of management contracts. Basically, they contain only the norms defined by the Housing and Civil Codes. However, if the contract describes in detail all the nuances of the procedure for terminating it, you can avoid the occurrence of disputes during the trial.
- A description of how the parties must notify each other of a decision to amend or terminate the management agreement.
For example, what form should notifications take: in the form of an announcement on the board or in the form of individual letters, the receipt of which must be confirmed by citizens. It is also necessary to determine how much time the other party has to respond.
- List of types of violations that are considered significant.
Such violations may be: non-payment within a certain time (or in a certain amount); improper fulfillment by the management company of obligations to companies providing resources, contractors and other specialized organizations during a certain period; inaction of tenants regarding issues overhaul(their refusal to make decisions when necessary and implement them within a certain time frame).
The Housing Code does not give the Criminal Code the right to unilaterally terminate the contract if it does not have objective reasons for this or does not notify the owners of MKD residential premises about this in advance (letter of the Ministry of Construction of Russia dated February 24, 2015 No. 12258‑АЧ / 04).
If all prescribed procedures are not followed, then Goszhilinnadzor authorities may recognize that the company manages the apartment building in an improper way, that is Maintenance is not carried out, housing maintenance is at a low level, there are no guarantees that the necessary services will be provided to the owners in full and with high quality, even the minimum of those works and services that would ensure the proper condition of the common property of MKD are not performed, and technical documents are not saved and are not transmitted.
If the managing organization is inactive, this means that it violates the requirements of the license (clause 3 of the Licensing Regulations entrepreneurial activity for the management of apartment buildings, approved. Decree of the Government of the Russian Federation of October 28, 2014 No. 1110). In this regard, compliance with all formal procedures is mandatory.
We list below the most common grounds for terminating the management contract with the owners of residential premises, which was initiated by the MA. In these cases, after considering the case, the court sided with the plaintiff:
- debts of tenants for payment of housing and communal services;
- non-payment on time by the owners of services for the maintenance of residential premises and common property of MKD;
- obstruction of residents to employees of the management company to carry out measures to preserve the common property of MKD;
- the requirement of tenants from the managing organization to provide services not specified in the management agreement;
- non-fulfillment by the owners of their obligations under the contract and their incorrect behavior.
Thus, the management company may initiate the termination of the management agreement on various grounds established at the legislative level. In order to terminate the contract without prejudice to both parties, it is necessary, when concluding it, to prescribe the procedure for this procedure in as much detail as possible.
What documents should the management company prepare if it refuses the house
Termination of legal relations with tenants entails the need to draw up many documents. You will need to draw up the following documents and send them to the owners of residential premises and employees of various authorities.
- Contacting the owners. It must indicate on what grounds the company refuses to cooperate with them, while referring to the laws, and also indicate when the MA will resign.
- Act of appeal to the housing inspectorate, in which it is necessary to describe the grounds for terminating legal relations with the owners.
- Contacting the local administration. It must justify the termination of the contract with the owners.
- Documents containing data on the last months of the activity of the Criminal Code. Provide them to the owners.
- Statements of personal accounts of MKD. They should also be handed over to the residents.
- A report on what was the last spending of the MA.
- Minutes of general meetings of residents and election of the Criminal Code, contracts concluded with contractors. These documents must be handed over to the owners.
- The description of what is the condition of the common property of MKD upon termination of the contract. Provided to homeowners.
If the owners have no questions or claims after providing them with all the documents, and if they agree to terminate relations with the management company, the contract can be considered terminated.
The following procedure is provided for terminating the management agreement, initiated by the MA, which is dissatisfied with cooperation with residents and has sufficient grounds for terminating legal relations with them, which allows not to infringe on the rights of residents.
- The managing organization must draw up an act indicating the reasons that forced it to initiate the termination of the contract. The grounds must be sufficient and meet the requirements of the law.
- Then you should prepare all the necessary documents and reports for transfer to residents. This is necessary so that they are aware of what has been done by the managing organization in recent months.
- The next step is to notify the owners of the removal of authority from the managing organization in 30 days. It is better to do this in advance so that the tenants have time to organize a general meeting and hold a competition to select a new manager.
- Further, the Criminal Code must notify the housing inspectorate and the local administration of the decision to terminate the contract. To do this, it will be necessary to draw up acts explaining the reasons for such a decision and send them to the appropriate authorities.
- Until the authority is removed from the MA, it must continue to serve the MFB, providing housing and communal services and carrying out the necessary work.
- If the owners do not file an application with the court, then after a month the contract is considered terminated.
Loss of license is the most common reason for not managing a home
The procedure for licensing management companies is far from perfect, there is clear evidence of this. The MA must place on the official website on the Internet information about the MKD, the license for the service of which it has. This page on the Web requires companies to disclose information on it in accordance with the requirements of a special standard. It is determined by the federal executive body, whose task is to implement state policy in the municipal sector (Part 1, Article 198 of the LC RF).
When concluding, terminating or terminating a management agreement with the owners, the number of MKDs serviced by the licensee changes. Therefore, he is obliged to make these changes to the official website in order to disclose information, within 3 working days from the moment when the contract was concluded, terminated or terminated. This information must also be submitted to the Goszhilnadzor (part 1 of article 198 of the LC RF).
Important!
In April 2016, the Ministry of Justice of the Russian Federation registered with the Ministry of Construction of Russia No. 938/pr dated December 25, 2015 “On Approval of the Procedure and Terms for Amending the Register of Licenses of a Subject of the Russian Federation” (hereinafter referred to as the Procedure). It indicates which documents the Criminal Code must provide to the employees of the State Housing Inspectorate. In addition to them, all decisions of the homeowners who participated in the meeting will be required (according to part 1.1 of article 46 of the Housing Code). Prior to the entry into force of the Procedure, when applying for inclusion in the register of licenses, copies of the minutes of general meetings of residents and copies of management agreements that met the requirements of the Housing Code of the Russian Federation were required (letter of the Ministry of Construction of Russia dated 05.08.2015 No. 24430-AC / 04).
However, the housing inspectorate, in the presence of doubts about the validity of the protocol in each specific case, could independently determine the content of the package of documents, since there was no approved list and order of them. At present, there is also reason for doubt.
The State Housing Inspectorate refuses to grant licenses to many MAs a few months after they submit an application, despite the fact that they have collected a full package of documents: management agreements, uncontested minutes of general meetings of residents, contracts with resource supply companies.
The GZhI may refuse for the following reasons: the minutes of the meetings of owners do not meet the requirements for them (this may indicate that the decisions made at the meeting are invalid); there is no information in the decisions of the tenants, which may also indicate their invalidity, etc.
If the MA did not agree with the decision of the housing inspectorate, she filed an application with the court. In such litigations, as a rule, GZhI won.
One dispute was resolved in favor of the Housing Inspectorate, since the court of general jurisdiction declared the decision of the general meeting of residents of the house, the license for which the Criminal Code wanted to receive, invalid. Another case was also won by the GZhI, since during its consideration it turned out that the organization applying for a license did not register on the website www.reformasite and, accordingly, did not post information about the MKD that it indicated in the application. In addition, the documents submitted to the housing inspection staff contained no information on the conclusion of contracts for the management of apartment buildings. MKD were not included in the information about the licensee on the grounds that the protocol on the decision to conclude a management agreement with the applicant UK was declared invalid. The rest of the reasons are absurd.
The management company is obliged to start carrying out work on the maintenance of an apartment building immediately after its selection at a general meeting of owners and the conclusion of a management agreement with them. According to the law, the management company does not have the right to take part in organizing and holding a general meeting of residents. Residents are only required to notify her of the results of the meeting by submitting a protocol containing decision. This document will be valid until the owners establish otherwise.
If the MA complies with the formalities by collecting all the necessary documents and submitting them to the housing inspection staff, it will not be able to prevent the company from successfully passing the licensing procedure. It is worth noting that the management company must fulfill the responsibility for managing the MKD until the administration holds a competition to select a new manager or until the tenants themselves conclude an agreement with another organization. This is pointed out in court.
In the event that the data on the MKD is excluded from the register of licenses or the license is terminated / canceled (according to Article 199 of the Housing Code), the management company is obliged to continue to carry out maintenance of residential premises (this obligation is prescribed in 2. 3 of Article 200 of the Housing Code) . This is necessary to ensure continuous maintenance of MKD and the provision of housing and communal services to owners. This norm allows to observe the rights of citizens and ensure safe operation MKD.
Attention!
In a judicial proceeding, managing organizations are obligated to manage an apartment building, even if the management agreement was terminated in the prescribed manner (decree of the Arbitration Court of the West Siberian District dated May 31, 2016 No. F04-1459 / 2016 in case No. A03-18027 / 2015).
If the housing inspectorate refuses to issue a license to the Criminal Code, then it must justify its decision. The Ministry of Construction decided that if residents want to terminate the management agreement with the company undergoing the licensing procedure, they must notify the state body in writing, providing also a copy of the minutes of the general meeting. Additionally, they may be required to attach documents confirming that the meeting was held in accordance with applicable law. These include:
- notification of owners that a general meeting will be held, where, by in-person voting, the method of managing the MKD will be determined, as well as elections of the MA will be held, points of the management agreement will be developed and approved;
- a register of sending registered letters, in which the owners of residential premises are informed that a general meeting is being organized in the form of a joint presence;
- a statement confirming that the owners received notifications about the holding of the general meeting, as evidenced by their signatures;
- minutes of the general meeting with a description of the decisions taken at it;
- a copy of the minutes of the general meeting in the form of joint attendance, at which the tenants chose the method of managing the MKD, the management company, and also developed and approved the terms of the management agreement;
- confirmation that the owners have been notified of the results of the general meeting, which was held in the form of joint attendance.
If the housing inspectorate refuses to grant a license to the managing organization, without motivating its refusal, its decision can be successfully appealed. It follows from practice that if the decision of the general meeting can be challenged, then this is not a reason for the GZhI to refuse to include information in the register of licenses.
After analyzing, we can conclude the following. The bodies that carry out the procedure for licensing management companies are highly corrupt. Some owners of residential premises may stop making payments for the housing and communal services provided to them, referring to the fact that information is not included in the register of licenses. Because of this, the debt of the managing organization will grow. Also, if there is no information about any MKD in the register of licenses, then this can be regarded as an administrative offense. They can file a case.
Even in the case of a successful appeal against the refusal of the housing inspection (this may take more than 6 months), the MA will be forced to participate in many lawsuits and spend a lot of time and effort on this. In such situations, management may decide to pay a bribe. It is worth noting that if the decision of the general meeting was not appealed and the Criminal Code submitted all the necessary documents, then the refusal to grant a license by the Housing Inspectorate can be appealed. In this case, the probability of winning the case is quite high. In the case of challenging the GZhI of the meeting of owners, it must be proved, even if the reason for the challenge is the lack of a quorum. The main evidence is a judicial act, indicating that the meeting was actually held. This document is easy to compile by connecting to this the owners who are loyal to the management company.
How to defend your right to manage if the management company is forced to abandon the house due to the revocation of the license
If the managing organization is unscrupulous, then it can be removed from the management of apartment buildings (but not all), depriving the license.
If during the inspection of houses there were claims against the management company, then it is removed from the management of those of them in which violations were found. To do this, information about these houses is excluded from the register of licenses of the subject of the Russian Federation.
In each region of our country, Goszhilnadzor bodies work with the register. If the MA does not eliminate the violations identified during the inspection, then the Housing Inspection excludes the house from the register of licenses. The exclusion procedure can be started after two instructions not fulfilled by the management company. In order to exclude an apartment building from the register of licenses, it is necessary to fulfill the conditions prescribed in Part 5 of Art. 198 of the Housing Code:
- companies ordered to eliminate the violation of the same license requirement for the same house;
- the company did not comply with the GZhI order, and confirmation of this is the court ruling that has entered into force.
The housing inspectorate informs the local administration about the existence of grounds for excluding data on the apartment building from the register of licenses. This information is brought to the attention of residents by the local government. The owners have the right to organize a general meeting at which they decide whether the management company can continue to serve their home, despite the identified violations and the presence of instructions from the GZhI to eliminate them. If such a decision is made, the tenants must send a copy of the minutes of the general meeting to the Housing Inspectorate.
Shipping time - no more than 3 working days from the date of its registration. If a copy of the protocol is not received by the employees of the GZhI, it will exclude the data on the apartment building from the register of licenses of the subject of the Russian Federation.
Influencing management companies by removing houses from the register of licenses is effective. Practice testifies to this. After the information about the MKD is removed from the register, the licensee does not cease to carry out maintenance activities for this house. It terminates management when the tenants enter into an agreement with another managing organization or implement another way to manage the MKD. These provisions are spelled out in Part 3 of Art. 200 of the Housing Code.
The decision on whether to conclude an agreement with a new MA or implement another method of management is taken at a general meeting of owners. It should be organized by the local government. If the meeting was not held, the administration announces an open competition, the purpose of which is to select the managing organization. This rule is contained in parts 4 and 5 of Art. 200 of the Housing Code.
It is possible for the local government to appoint a temporary management company. This right is not explicitly stated in the law. But this option is provided by the Ministry of Construction of Russia in a letter dated April 24, 2015 No. 12258‑АЧ/04.
Example
The federal agency considered the option when the management company stopped managing the house. It clarifies that such a situation is an emergency, as it endangers the health of citizens, may cause material damage, and cause deterioration of living conditions. The Ministry believes that such conclusions can be drawn on the basis of the provisions federal law dated December 21, 1994 No. 68-FZ "On the protection of the population and territories from natural and man-made emergencies" (hereinafter - Federal Law No. 68-FZ). In the event of an emergency, the administration has the right to set the local level of response.
This procedure is prescribed in paragraph 3 of Art. 4.1 of Federal Law No. 68-FZ. The municipal emergency commission may appoint a municipality-owned management company responsible for maintaining the common property of an apartment building. Such an organization will manage until an open tender for the selection of the management company is held and the management agreement concluded with the selected company enters into force.
Possible conclusion with the owners of residential premises temporary agreement maintenance of common property. At the same time, the temporary management company must perform the work and provide the services indicated in the notice of a tender for the right to manage an apartment building. Residents should be charged for maintenance of MKD in the amount established by the local government.
When concluding an agreement with a particular management company, the owners hope that all the conditions of the agreement will be fulfilled for their money.
However, tenants often forget that the management company also has its own requirements and interests, which it cannot contradict.
According to statistics, many employees of management companies receive remuneration (instead of wages) below the subsistence level, and all because many owners refuse to pay for maintenance and utilities, which puts the management company in a difficult position.
She either spoils relations with utilities and contractors, or is forced to refuse cooperation with the owners.
Increasingly, cases appear in the courts about the refusal of management companies to service the house. Some of them remain without consideration, some decisions are appealed.
Anyway, refusal of the Criminal Code from the contract is a very common practice, which means that not only residents know and protect their rights, management companies also want to benefit from cooperation and see no reason to continue working if it is not properly evaluated.
We are told about the grounds for the refusal of the management company from its activities by two authoritative in Russian legislation normative act.
In paragraph 8 of article 162, The Housing Code says that the refusal of the management company from its duties is possible and the grounds are spelled out in the Civil Law.
Turning to the Civil Code, we see a more constructive and understandable answer to the question we are considering. According to Article 450 of this normative act, a break in relations is possible, but only by agreement of the parties. However, there are some exceptions.
These include cases when one of the parties (owners or management company) refuses to comply with the requirements of the contract or evades their performance, thereby causing losses to the other party.
Another reason for terminating the management contract at the initiative of the managing organization is a significant change in the conditions that directly contradicts what is prescribed in the contract, and although it depends little on the actions of the parties, it still does not imply what was originally noted in the service contract.
One way or another, the vaguely painted phrases in the Civil Code give us reason to believe that The management company can terminate the contract with the owners on its own initiative, but this requires essential conditions.
In addition, returning to article 162 of the Housing Code, we get acquainted with part 8.2, which states that a party can also withdraw from the contract on its own initiative, announcing this to the opposite party and obtaining its approval. This requires a general meeting and the consent of the owners themselves.
The video provides detailed explanations of 450 Art. The Civil Code of the Russian Federation, which regulates the possibility of terminating the contract unilaterally:
Step-by-step instructions for terminating the management agreement at the initiative of the managing organization
If the management company is dissatisfied with cooperation with the owners and it has good reasons to terminate the contract, it must take a number of consistent steps to terminate the relationship in accordance with the law without infringing on the rights of the owners.
The sequence of actions of the Criminal Code in case of refusal to manage the house is as follows:
After all of the above, the management company must continue to work on the territory of the serviced apartment building until the date of termination of authority. If the tenants have not received a call to the court, the contract is considered terminated.
Advice! With such a complex procedure as refusing to service an apartment building by a management company, you need to pay attention to any little things and details, because the whole system of housing legal relations ultimately consists of them.
Foundations and their formulation
If the management company does not have sufficient work experience, but there is dissatisfaction with cooperation with the owners of an apartment building and, as it seems to the employees of the organization, there are reasons for breaking legal relations, you need to make sure of this.
There are two ways to make sure that the Criminal Code has enough grounds to terminate the contract unilaterally:
- Contact a real estate lawyer who will assess the situation and explain whether your reason fits the wording of the law.
- Familiarize yourself with case law- having studied what grounds caused the break in relations, and what decision the court made on the cases, you will be able to model your situation in a future court session and understand how it fits the formulations of the Civil and Housing Codes.
In most cases in which the management company wins, the wording for breaking off legal relations with the owners is as follows:
What documents are required?
Failure to cooperate with homeowners leads to a large number paper tape. Here the main acts that must be drawn up by the Criminal Code and sent to owners and to various authorities:
Attention! If the tenants of the apartment building do not have questions and claims regarding the state of the documents, and they also accept a refusal to cooperate without going to court, the contract can be considered terminated.
What to do if the management company abandoned the house?
After the management company announced the imminent termination of its powers, tenants must choose a new organization. To do this, they must notify the housing inspectorate, local government and the media about the upcoming meeting, at which representatives of management companies can put forward their candidacies.
All applications must be sent to both the local government and the representative of the owners. Representatives of management companies should familiarize residents with their activities, provide a good commercial offer.
More than half of the tenants-owners of an apartment building must be present at the meeting.
If, upon voting, no management company has received more than fifty percent of the votes, the meeting is also postponed to another day. With the selected management company, the tenants discuss the nuances of management and conclude an appropriate agreement.
Note! The management company that terminates the contract must transfer to the new organization all the documents for managing the apartment building, report on expenses and the remaining funds on personal accounts.
Although judicial practice is replete with cases of refusal of the management company from their duties, yet many tenants try to appeal this decision. Therefore, in order to take such a step, the organization must have sufficiently weighty reasons.
Everything needs to be clear, and this procedure is no exception. Only if the management company does everything correctly and even helps with the choice of a new organization, does it have a chance to stay on good terms with the owners and not end up in the courtroom.