The service provider must have the following characteristics. Public service provider

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

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

One of the areas of reforming the industry, which is embodied in the creation of an institution for managing an apartment building, is to increase the responsibility of the owners of premises (read - residents) for their home and interest in its quality maintenance. The authorities tried to break the stereotype "common means nobody" by introducing such an object of management and accounting as an apartment building. Previously, residents of all houses, for example, a district of the city, paid for the item "maintenance of the housing stock" on equal terms, but in fact, work was carried out only for a few houses. It turned out that people "threw off" for the improvement of strangers adjoining territories. Of course, there was no need to talk about the transparency of the movement of funds contributed as rent, which was one of the reasons for the prevailing thought in the mass consciousness: "I pay for nothing." In some cases, this approach is indeed justified (for example, such a situation has developed with the expenditure of funds contributed under the item "major repairs" in houses that were not repaired beyond the prescribed time frame).

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

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

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

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

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

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

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

housing code

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

Note. An apartment building management agreement is concluded:

• based on the results of an open tender;
• when choosing a managing organization by a general meeting of owners of premises in the house;
• if the owners of the house in which the HOA was created decided to resort to the services of a managing organization.

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

Rules for the provision of public services

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

Communal resources - cold and hot water, electric and thermal energy, gas, household gas in bottles, solid fuel used to provide public services.

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

Note. The concept of a communal resource seems to some experts far-fetched and has no real content. Criticizing the approach presented in the Rules as a whole, they point to the confusion of concepts allowed in the document itself: the utility consumption standard is defined as the monthly consumption of utility resources by the consumer. However, here it must be remembered that in paragraph 6 of the Rules, utilities (by type) represent the provision of the consumer with a communal resource of adequate quality and in required volumes. Therefore, it is quite logical to define the "quantity" of the service through the quantity of the resource.

As follows from the Rules, the contractor acquires utility resources from a resource supply organization, then, using in-house engineering systems, provides utility services to citizens. The Ministry of Regional Development explained that obligatory sign the status of a utility services provider is the responsibility of one person for supplying communal resources to the residential premises, and at the same time for servicing in-house engineering systems, using which utility services are provided to the consumer<1>(Letter dated March 20, 2007 N 4989-SK / 07). By the way, the arbitrators adopted the signs of a utility services provider formulated by the Ministry of Regional Development. for example, in the Decree of 28.01.2008 N F09-11548 / 07-S5, the FAS UO established that the Municipal Unitary Enterprise Housing and Public Utilities is not a utility service provider, which means that it does not have the right to apply for the use of regulated tariffs when purchasing electrical energy (for extracting water from an artesian well) .

<1>The contractor has the right to serve house equipment both on their own and with the involvement of other persons on the basis of a reimbursable contract.

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

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

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

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

Managing organization - subscriber

The obligations of the contractor of public services include the conclusion of contracts with resource-supplying organizations or the independent production of communal resources necessary for the provision of public services to consumers (clause "c" clause 49 of the Rules). In the Letter of 03.05.2007 N 8326-RM / 07, the Ministry of Regional Development explains: we are talking about contracts for the purchase of all communal resources, the provision of which is possible based on the degree of improvement apartment building. Recall that, according to the definition given in clause 3 of the Rules, a resource supplying organization sells communal resources. It is obvious that we are talking about an energy supply contract here.

Also, federal legislation contains a direct indication that managing organizations are consumers of goods and services of organizations of the communal complex in the field of electricity, heat, water supply, sanitation in apartment buildings, although they do not purchase them for themselves, but to provide them to persons using the premises in an apartment building<3>. In clause 89 of the Rules for the Functioning of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry<4>it was noted that the public services provider purchases electrical energy from a guaranteeing supplier for the purpose of providing owners and tenants of residential premises in an apartment building with utility power supply services, use for general house needs, as well as to compensate for losses of electricity in intra-house electrical networks on the basis of an energy supply agreement (purchase agreement). electricity sales).

<3>Subparagraph "a" of paragraph 17 of Art. 2 of the Federal Law of December 30, 2004 N 210-FZ "On the basics of regulating the tariffs of organizations of the communal complex".
<4>Approved by Decree of the Government of the Russian Federation of August 31, 2006 N 530.

Since management organizations are not interested in acting as a subscriber under a resource supply agreement (this means responsibility for paying for utility resources), they are trying to defend the opposite point of view in court. The main argument is that, according to paragraph 2 of Art. 539 of the Civil Code of the Russian Federation, an energy supply agreement is concluded with a subscriber if he has a person who meets the established technical requirements power receiving device connected to the networks of the power supply organization, and other necessary equipment. However, it seemed sufficient to the arbitrators of the FAS SKO that the electrical installations (power receiving devices) were transferred to the management organization (Resolution of 18.01.2007 N Ф08-7066 / 2006).

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

Resolution of the FAS DVO dated 16.03.2007 N F03-A51 / 07-1 / 199 is another example of an attempt by a managing organization to refuse the status of a subscriber in an energy supply agreement. In this case, the managing organization demanded that the contract with the heating network enterprise be declared invalid. Two justifications have been put forward. Firstly, the managing organization entered into this agreement under the influence of a delusion regarding the nature of the transaction (Article 178 of the Civil Code of the Russian Federation): it acts as a party to it, while in fact it is not a consumer of thermal energy and does not have an energy receiving device. Secondly, the managing organization regarded this transaction as enslaving (Article 179 of the Civil Code of the Russian Federation): it is executed at the expense of the funds of the managing organization, the solvency of which depends on the receipt of funds from citizens. However, the arbitrators did not agree with the plaintiff's arguments: the contract clearly expresses the intention of the parties regarding the type of contract and the content of contractual obligations.

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

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

turning point

Prior to the entry into force of the Rules (09.06.2006), when the Rules for the provision of public services were applied, approved by Decree of the Government of the Russian Federation of 09.26.1994 N 1099, the managing organization was not named among the performers of public services. Recall that, in accordance with paragraph 1.1 of this document, utility service providers were enterprises that own housing stock and engineering infrastructure facilities, have full economic management or operational management, as well as associations of owners who have been transferred the right to manage an apartment building (condominiums). Therefore, for example, if a housing and communal services organization entered into management contracts before 06/09/2006, they could well contain provisions on its intermediary role in the provision of public services to citizens.

It was this conclusion that guided the Seventeenth Arbitration Court of Appeal in its Ruling of November 28, 2007 N 17AP-7985/2007-GK. Thus, the administration of the urban settlement, as the owner of premises in an apartment building, applied to the court with a demand to invalidate the contract for managing this house, concluded by the owners of the premises with the managing organization on 28.03.2006. The reason is the absence in the contract of such essential conditions as the obligation of the managing organization to provide utilities to the owners, their list and the amount of the fee. Since the respondent does not belong to organizations that have on any real right the housing stock is located, is not an association of owners to which the right to manage an apartment building has been transferred, and is not a specialized organization providing utility services, the inclusion in the contract of the obligation to provide utility services did not comply with the legislation in force at the time of conclusion of the contract. In other words, the managing organization was not a provider of public services and no corresponding task was received from the owners.

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

Another noteworthy dispute is considered in the Decree of the FAS DVO of November 13, 2007 N F03-A51 / 07-1 / 4490. The resource supplying organization applied to the court with a demand to force the managing organization to conclude an agreement for the supply of drinking water and Wastewater. According to the plaintiff, the defendant is obliged to conclude a contract for the sale of communal resources, since he is not able to produce them independently. As the arbitrators established, the management organization concluded a management agreement dated 09.01.2006 with the owners of the premises, the provision of public services was not included in its subject. Moreover, this agreement establishes the obligation of the owners of the premises to conclude agreements on the purchase of cold and hot water, electrical and thermal energy and water disposal directly with resource supply organizations.

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

Indeed, the obligation of the managing organization to conclude agreements with resource-supplying organizations on the acquisition of communal resources appeared in the legislation only on 06/09/2006. However, even after this date, the resource supplier does not have the right to force the managing organization to sign the contract, since such an obligation arises for the contractor only in relation to consumers of utility services. In other words, only the owners of the premises have the right to demand from the managing organization to conclude agreements on the acquisition of communal resources.

Note. That is why a resource-supplying organization can get into an unpleasant situation, as happened with one private operator who rented utility networks from a municipal unitary enterprise. The managing organizations of the entire city refused to conclude contracts for the sale of utility resources with him and, accordingly, did not charge the population for these resources. At the same time, the resource-supplying organization was not entitled to interact directly with consumers - to collect fees from them. As a result, the resource-supplying organization accumulated large debts to its counterparties, which jeopardized the uninterrupted utility supply of the settlement. The problem was solved only with the participation of regional authorities.

Features of the energy supply agreement

According to paragraph 8 of the Rules, the terms of the agreement on the acquisition of communal resources and wastewater disposal (reception (discharge) of wastewater), concluded with resource supply organizations in order to provide the consumer with utility services, should not contradict the Rules and other regulatory legal acts of the Russian Federation. This norm was commented on by the Ministry of Regional Development in two letters in connection with numerous appeals from utility service providers. In the first of them (dated February 13, 2007 N 2479-RM / 07), officials limited themselves to only general conclusions. So, housing code and other legal acts take precedence over the norms of § 6 "Energy Supply" Ch. 30 of the Civil Code of the Russian Federation. Other legal acts in this case include the Rules. Therefore, the provisions of clause 8 of the Rules are aimed at ensuring compliance with the terms of contracts for the acquisition of communal resources and water disposal, concluded by the contractor of public services with the resource supply organization, and based on the Rules, the obligations of contractors to owners of premises in apartment buildings and consumers. In other words, resource supply contracts must comply with the requirements of the Rules.

It turns out that clause 8 of the Rules extended the validity of this document, which, according to their clause 1, regulates relations between contractors and consumers of public services, also to the legal relationship between the utility services contractor and the resource supply organization. On the basis of clause 8 of the Rules, the utility service provider has the right to demand the establishment of parity terms of contracts with resource supply organizations that comply with the Rules by agreement of the parties, and in the absence of such an agreement - in court.

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

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

<5>Approved by Decree of the Government of the Russian Federation of February 12, 1999 N 167.
<6>Approved by Decree of the Government of the Russian Federation of 05.02.1998 N 162.

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

Clause Rules	Mandatory requirements in terms of:
3 - 6	determining the parties to the relationship to provide utilities and the composition of utilities, for which the performer is responsible to the consumer, and not resource supplying organization
7	features of the acquisition of communal resources and services water disposal by the owners of the premises, carrying out direct management of an apartment building, resource supplying organization that is not responsible for maintenance of in-house engineering systems
9 - 12, Appendix No. 1	coordination of requirements for the provision of public services and requirements for the quality of communal resources and services sewerage
15	tariffs for communal resources and water disposal services, used for calculations of the resource supplying organization with executor - managing organization
16 - 34	procedure for calculating fees for consumed in an apartment building house utility resources and diverted wastewater, the frequency of making such a fee (payment for heat energy is produced evenly, payment is actually consumed amount of heat energy is possible only if application of two-part tariffs)
38	paying utility bills only to the specified in payment document performer's bank account
54 - 59	the procedure for recalculating fees for certain types of utilities resources due to the temporary lack of consumers in occupied residential premises
64 - 74	procedure for the actions of the emergency dispatching service of the resource supplying organization, drawing up an act on the non-provision of public services
60 - 63, Appendix No. 1	the procedure for changing the amount of payment for the supply of utilities resources of inadequate quality or intermittently, exceeding the prescribed duration
79 - 86	grounds and procedure for suspension or restriction of filing communal resources

As an illustration of the above, we present several situations. Section VII of the Rules for the use of public water supply and sewerage systems in the Russian Federation provides for the possibility of terminating or restricting the supply of drinking water and (or) the reception of wastewater, in particular if the subscriber violates the payment terms. However, according to par. "d" clause 50 of the Rules, the contractor of public services has the right in the manner prescribed by Sec. X of the Rules, suspend and limit the supply to the consumer of only hot water, electricity and gas. Consequently, the contract for the supply of drinking water, concluded between the WSS organization and the management company, cannot contain conditions for the suspension or restriction of water supply in the event of a debt of the management organization. A similar conclusion regarding heating was made by the Presidium of the Supreme Court in the Review of Legislation and Judicial Practice of the Supreme Court for the fourth quarter of 2006 (answer to question 28).

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

Note. Considering the requirements of the managing organization to resolve disagreements under the contract for the sale of electrical energy with the energy sales organization, the FAS Central Organ in Resolution N A64-3987 / 06-9 of 25.07.2007 N A64-3987 / 06-9 was guided not only by § 6 Ch. 30 of the Civil Code of the Russian Federation and the Rules for the Functioning of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry, but also the Rules.

So, we have to state that the legislation offers managing organizations only a contract for the sale of communal resources, but gives the right to conclude it on parity terms.

E.V. Ermolaeva

Magazine editor

"Department of Housing and Utilities:

accounting and taxation"

The resource supplying organization is an important participant in the utility services market. The benefits of modern civilization that ensure the comfort of our homes, whether it be water, heat, gas or electrical energy - all this is provided to the inhabitants of the MKD by the RSO. Let us consider the features of the work of managing organizations with resource providers in more detail.

What are RSOs? Many people do not know this term, and people mistakenly believe that the representative office of the management company is responsible for supplying heat and water to houses. Resource-supplying organizations are both producers of the necessary resources and their suppliers. Let's give examples.

• The city water utility sends water through pipes to the houses. Accordingly, when opening a tap in our house, we use hot or cold water.
• For heating in autumn-winter period Responsible for several companies. If we consider the houses in which it operates individual provision heat, such buildings have their own boiler houses, heating stations. They can be installed both on the roof and in the yard. If heat energy is supplied to the house by the city, the responsibility of the resource-supplying organization - heating networks - appears.
• Electricity is generated by hydroelectric power plants. It all depends on how densely populated the city is.
• The supply of the most important resource - gas is the responsibility of the city gas service. But since a significant part of the population uses electric stoves, this category of people does not need blue fuel.

Thus, resource-supplying organizations provide the most important benefits that consumers use every day. Payment for their services is made in accordance with the current prices. Tariffs of resource supplying organizations for each Russian region different.

When can a supplier of water, gas, electricity, heat act as a utility service provider (CU)?

Currently, apartment buildings are managed by:

• homeowners associations or other cooperative associations;
• management companies;
• property owners directly.

In the latter case, when one owner acts on behalf of all tenants (it can also be a trustee), the resource supply organization becomes the contractor for utility services. Other situations when the same enterprises act as a CG supplier are as follows:

• the owners have not yet decided on the method of management;
• the previous management method has ceased to operate, and the new one (UK or HOA) has not yet been selected. In the interval between these events, the RSO turns into a KU executor.

Decree of the Government of the Russian Federation No. 354 lists the rules under which resource-supplying organizations can become utility service providers.

Can a UK be a resource supplying organization?

A management company is a legal entity that operates, manages and maintains residential buildings in accordance with an agreement signed between it and the apartment owners. In other words, the management company acts as an intermediary that accumulates the funds of the owners in order to pay for the services provided by the resource supplying organization.

The management company is the contractor of the CU and the contractor of the users. RSO is a subcontractor on the basis of an agreement concluded between the UK and RSO.

In addition, the management company maintains the common property, draws up a repair plan, conducts it and operates the buildings. Based on the foregoing, a resource supplying organization cannot be a management company, since it has the right to carry out only one type of activity and should not be engaged in the general management of residential facilities.

At the same time, resource-supplying organizations and consumers can pay directly. This does not prevent the management company from performing its functions. A direct contract between the owner and the resource supplying organization for the provision of services is also allowed.

Does the owner have the right to conclude a direct contract with a resource supply organization

According to the plan, consumers will be able to conclude direct contracts with resource supply organizations in 2017. Such agreements will be allowed in some cases.

• If the services are used by the owner of a private dwelling.
• If the general meeting of tenants chooses the option of direct management. This form is usually useful for small houses, the number of apartments in which is less than 16.
• If users are owners of non-residential premises in MKD.
• If the HOA or the UK will have debts to the RSO, the amount of which will exceed the cost of services for three billing periods.
• In the period of time when the contract between the CG executor and consumers ceases to be valid until the new agreement enters into force.

In a number of these situations, the owners of residential facilities have the opportunity to conclude direct contracts and make direct settlements with resource supply organizations.

However, there are both pros and cons to this issue. Here are the main advantages of such a scheme.

• There are no expenses for the maintenance of the Criminal Code.
• No collective responsibility. The owner, who pays the utility bills in a timely manner, is not affected by the debts of unscrupulous neighbors.
• Opportunity to attract housing maintenance contractors for a short-term period. Due to this, it is realistic to achieve significant savings, since all companies compete with each other, and therefore strive to offer the most favorable conditions.

Among the disadvantages of concluding direct contracts between resource supplying organizations and users, the following can be noted:

• The efficiency of controllability of MKD decreases. To resolve important issues, it will be necessary to hold general meetings, which may not lead to an agreement between all participants.
• The impossibility of performing major repairs in the house with the involvement of finance provided by the Housing and Utilities Reform Assistance Fund.

How the management company and resource-supplying organizations interact

Many owners of residential premises in MKD are not aware of the interaction between the management company and the resource supply organization. It is the management company, being a representative of the apartment owners, that concludes an agreement with suppliers for the provision of services. Contracts of this kind necessarily contain an indication of the term and tariffs. These documents should not be confused with those that are drawn up between the tenants and the management company.

There are many advantages in cooperation between the UK and RSO, but there are also disadvantages. Not all homeowners pay utility bills without delay. Since the Criminal Code, representing the owners, prescribes the obligation to timely pay for the consumed resources and other services, in case of non-payment, it is liable.

With an increase in the amounts of outstanding obligations, the resource supplying enterprise has the right to subpoena the management company in court and collect debts from it. Many management companies deal with bailiffs, and later become bankrupt. That is why, being responsible for the entire MKD, the Criminal Code, of course, risks.

What contract to conclude a management company with a resource supply organization

The contracts concluded with the resource supplying organizations of the Criminal Code are different. Enterprises provide each their own services, respectively, and the agreements differ from each other.

• Supply contract

The most common type of agreement. It can be concluded, for example, for the provision of electricity. The contract has a standard form and full compliance with the Civil Code of the Russian Federation. The document fully discloses the obligations and rights of the resource supplying organization and the management company, it specifies the timing and number of deliveries, issues related to payment and non-fulfillment of financial obligations.

The contract must contain information on the amount of energy supplied to the house per day (on average). Employees of the Criminal Code always have the opportunity to take measurements. In the case of significant differences in indicators from those specified in the contract, we can talk about the conduct of RSO unscrupulous activities.

• Contract for services

important type of agreement. As a rule, such agreements are concluded with waste disposal organizations. The document prescribes questions about payment, the rights of participants, indicates the time frame in which garbage collection is expected, approximate cleaning hours and the frequency of its conduct during the week. The agreement can also provide for liability for failure to comply with certain of its clauses.

• Work agreement

Another important document is the contract. As an example, consider entrances and houses in general, where from time to time something breaks, there is a need to reconstruct the railings, paint the walls in the entrance, repair the elevator, and clean up the area. All these activities are carried out not by employees of the Criminal Code, but by hired workers for an agreed fee. As for the contract, it primarily denotes the rights of the resource supplying organization and the management company. In addition, the document prescribes the responsibilities of the participants. The issue of payment is also important. labor activity employees.

The contract provides for liability for failure to comply with certain clauses of the agreement. These chapters are important, as they can affect both the extension of the contract between the management company and the resource supply company, and the termination of cooperation.

Conclusion of agreements with resource-supplying organizations: step-by-step instructions for management companies

Step 1. Exploreofficial website of the resource supplying organization.

Step 2. We prepare a package of documents for transfer to the RSO, which are required to conclude contracts for the supply of utility resources.

If the apartment building was connected (technologically connected) before the Decree of the Government of the Russian Federation dated February 13, 2006 No. 83 “On approval of the Rules for determining and providing technical conditions for connecting a capital construction object to engineering networks and the Rules for connecting a capital construction object” came into force to engineering networks”, the relevant documentation is attached to the offer (application).

Step 3. We apply to the RSO to conclude an agreement for the supply of utility resources.

There are certain rules that must be observed when concluding agreements between the UK, HOA or housing cooperative with a resource supply company. However, they do not determine the method of providing prepared documentation and an offer for concluding agreements for the provision of CG. That is, you have the opportunity to choose a convenient type of submission of documentation (by mail, in person, etc.). To conclude an agreement as quickly as possible, you can come to the RSO. The company's opening hours are indicated on its official website.

Step 4. We are waiting for a response from the RCO

Resource-supplying organizations are obliged within 30 days to agree or refuse to conclude an agreement between the Criminal Code and the RSO on the indicated conditions. The reasons for the negative answer must be stated in the established Rules.

If the documentation provided by you turns out to be incomplete or some papers are incorrectly executed, the resource supplying organization is obliged to inform you in writing. She has five working days to do this from the date of receipt of the offer.

If within 30 days from the date when the consideration of the submitted documentation was suspended, you do not transfer the missing or correctly executed papers, the RSO has the right to terminate the case on the application and return the documents.

3 tips if you are renewing a contract with a resource supplying organization

• Plan ahead for dates

The minutes of the general meeting, the MKD management agreement must contain the dates for the start of activities that are suitable for you. They certainly need to be displayed in documents. Thus, the owners of the premises in the MKD elect a new managing organization, indicating when it needs to start fulfilling its duties. If you can "come home," advise homeowners on optimal numbers.

The document must contain a comparison of at least two dates: the day of the general meeting of homeowners in the MKD and the start of the implementation of the obligations stipulated by the management agreement.

It will be better if you write the following directly in the agreement: “the date of commencement of the fulfillment of obligations under this agreement is “01” _______ 201___”. Further, you will understand why it is more reasonable to indicate the first day of any month.

The supply of the resource cannot be made earlier than the date on which the MC must provide services to users. This is stated in paragraph 19 of Regulation No. 124.

The obligation to provide public services appears in the new Criminal Code starting from the date indicated in the decision of the general meeting in the MKD on the choice of an economic enterprise. The same number must be indicated in the house management contract as the day from which it is supposed to start activities. This procedure for choosing dates is described in paragraph 14 of the Rules for the provision of CG to owners and tenants of apartments. This provision was approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354.

If you do not think over the days of acceptance / transfer of MKD management in advance, you are at considerable risk.

• First of all, you can skip the time at which you need to send a request to the supplier. During the period until you submit the documentation, the resource supplier presents invoices for the provided CG to the previous management company. Another option is no charge. Here, concluding a contract with you for the supply of resources, RSO will recalculate and bill you for the missed time.

The Supreme Court of the Russian Federation formed its own opinion on this issue, however, not every resource-supplying organization takes it into account. The Supreme Court of the Russian Federation noted that when apartment buildings are removed from the management of the company, it is possible, based on this, to terminate obligations under Art. 416 of the Civil Code of the Russian Federation and, as a result, terminate the contract for the supply of services. If there is no agreement with someone who has recently started managing an apartment building (energy receiving device), this does not become the basis for imposing the obligation to pay for the utility bill to a person who no longer has a legal and factual connection with these devices.

• Secondly, a cash gap is inevitable. For example, it is necessary to conclude a resource supply agreement in accordance with the agreed dates in the middle of the calendar month. How, in such a situation, to find out about the current readings of general house and individual metering devices (ODPU, IPU) for all premises of an apartment building on that particular day? If the former managing organization takes the indicators of the ODPU, for example, on July 18, and the recently assumed office on August 2. In this case, the resource supplying organizations are asked to pay for the delta, since during the period of the break, the residents of the MKD continued to use all the CUs. The settlement period for paying utility bills here becomes a calendar month (clause 37 of Rules No. 354, clause 79 of the Basic Provisions for the Functioning of Retail Electricity Markets, approved by Decree of the Government of the Russian Federation No. 442 dated 04.05.2012, hereinafter - Basic Provisions No. 442).

It is better to terminate the agreement with the previous business company and conclude an agreement with the next one at the moment when the calendar month ends. So you will avoid discrepancies in the calculations of expenses and incomes of the new and old managing organizations, as well as the likelihood of recalculations between them and the resource supplying enterprise.

• Draw up an act of taking evidence on the date of commencement of the fulfillment of the obligations of the new Criminal Code

To carry out recalculations, it is necessary to have an act of taking readings of the ODPU. This rule is not put forward at the legislative level, but in practice this document is necessary. The signing of the act by two parties is required: the transferor and the recipient. He explains who pays for utilities and how much resources have been used.

Suppose the act is drawn up on July 31, 2017. The document indicates the date and testimony of the ODPU. The new management company begins to fulfill its obligations under the management and supply contracts on August 1 of the same year. As a result, payment for all resources consumed up to July 31, 2017 inclusive is the responsibility of the former economic organization, and it is necessary to pay off with the new management company from August 1.

• Send the documents to the RSO in a timely manner for the conclusion of the contract

The duties of the new governing organization no later than a week after the contract for the management of an apartment building entered into force, but not earlier than 10 working days from the date when the decision was made to select it, include sending an application to the RSO to conclude an agreement for the supply of resources. Together with the offer, the documentation provided for in paragraphs. 6, 7 of Regulation No. 124.

If we consider the issue of providing public services from a legal point of view, in this case it is impossible to change their contractor automatically. But in reality there are other situations. The resource supplying enterprise also looks at the minutes of the general meeting of owners, in particular, the procedure for providing CG and paying for them, which was in effect before it was decided to choose a new managing organization, has been retained or changed (Part 18, Article 12 of Federal Law No. 176-FZ).

It also happens that the management company is in no hurry or simply does not have the opportunity to provide full documentation to the RSO in accordance with Rules No. situations when the house is managed by a management company or homeowners association. Parts 5, 6, 6.3, 7 and 7.1 of Art. 155 of the Housing Code of the Russian Federation is applied if a business enterprise (HOA or cooperative), which is engaged in an apartment building, has concluded, in accordance with the law, contracts with suppliers of water, gas, heat, and electricity. The application of these provisions is not possible if the resource supplying organization is a utility service provider.

This point of view can be disputed, since all the rules mentioned in it are created by the person who is paid the CH, depending on the method of managing the apartment building, and not on the presence or absence of supply contracts with the designated persons with the resource supplying organization.

The Supreme Court of the Russian Federation has its own legal position on this matter. It is expressed in the fact that if an organization is endowed with the status of a management company, it automatically becomes a CG executor. And in this case, it is obliged to provide services to the end user and pay for the use of communal resources with the enterprises that supply them.

Expert opinion

The absence of a license from the MA does not entail the termination of previously concluded agreements

Maria Goryacheva,

Head of the Department of Judicial Arbitration and Claims Work of the Legal Department of PJSC GK TNS Energo

If a company does not have a license, this does not mean that the management contract should unconditionally and automatically terminate. In this case, we are also talking about a contract for the supply of resources. The agreement ceases to be valid if the owners of residential premises in the MKD have abandoned it, have chosen a different method of management or a new management company based on the results of an open tender. The basis of such conclusions is the provisions of paragraph 3 of Art. 200 RF LC, clause 32 of Regulation No. 124.

Does the resource supplying organization have the right to apply a multiplying factor

It is necessary to reconcile the invoices sent to you by the resource supplying organization with the terms of the contract for the supply of services. Does the contract allow the use of a multiplier? Did you sign an additional agreement? If you gave a negative answer in both the first and second cases, the resource supply company cannot increase the amount of the payment for the reasons described below.

In 2017, in the field of relations between utility providers and management companies, a PC (multiplier factor) appeared. Innovations were reflected in the Rules that are mandatory when signing contracts for the provision of resources in accordance with Decree of the Government of the Russian Federation dated February 14, 2012 No. 124.

The use of a default multiplying factor is unacceptable when paying for CG in accordance with agreements concluded earlier than 2017, according to Art. 422 of the Civil Code of the Russian Federation. This means that the PC usage rule between the utility and you is not retroactive. The condition for applying the multiplying factor when making calculations can be reflected in the contract for the supply of resources only if the parties agree to this.

That is, if you entered into a contract with a resource supplying organization before January 1, 2017, the company has the right to offer you to draw up an additional agreement to the main document or a statement of individual clauses of the contract in new edition. By amending the contract, you thus acknowledge that the multiplier may be used in the calculation.

If you have signed an additional agreement, the resource supplying organization will display in the contract the necessary information on the application of the multiplying factor when it is extended. Your contract for the supply of resources indicates the period of its validity, and when you re-register, the calculation scheme will change. This procedure is legal, since the re-signing of the contract will take place already at the moment when the new provisions of the Rules for Concluding Agreements come into force.

Expert opinion

To which utility resources and which PC can apply RSO

Gulnaz Nikitina,

expert of the reference system "Management of an apartment building"

There are two types of settlements for KU, in which resource-supplying organizations have the right to use a multiplying factor. Let's dwell on them in detail.

1. Calculations for heat energy.

The determination of payment for thermal energy is carried out taking into account the heating consumption standard and the total footage of premises in the MKD for residential and non-residential purposes using a multiplying factor. PC is 1.1.

2. Calculations for KU used in the maintenance of the common house economy of the MKD. In this case, we are talking about resources such as:

• cold water supply;
• hot water supply;
• electricity.

When calculating the cost of CU for the maintenance of common house property, the consumption standards for the corresponding types of resources and a multiplying factor equal to 1.5 are applied.

The resource supplying organization has the right to use a PC in a number of cases. All information about the procedure for using the PC is placed in the table. This is stated in subparagraphs "e", "g" of clause 22 of the Rules for Concluding Contracts.

If there is no common house metering device in an apartment building, some nuances are possible. Resource supply organizations can use a PC when making calculations if it is technically possible to install a meter in the house, but it is not available due to other reasons. If it is not in your interests to pay more than the required amount of KU, it is worth mentioning in the survey report about the technical reasons that do not allow the installation of an ODPU. Identification procedure technical feasibility is determined and executed on the basis of the order of the Ministry of Regional Development of Russia dated December 29, 2011 No. 627 “On approval of the criteria for the presence (absence) of the technical feasibility of installing individual, common (apartment), collective (common house) metering devices, as well as the form of an inspection report to establish the presence (absence) ) the technical feasibility of installing such metering devices and the procedure for filling it out.

This is the provision of subparagraph "e" of paragraph 22 of the Rules for the conclusion of contracts.

Who is responsible if the owners do not pay the resource supplying organization

If the contractor is a management company, it is she who is responsible for payments not made in a timely manner to the supplier. Enterprises providing services cannot make direct claims for the collection of debts from their users, if there is no contract concluded directly with them. In the case of the management company, settlements with resource supply organizations are not carried out for each individual consumer, but for the provided volume of water, gas, electricity, and heat in general for each house.

At the same time, the supplier cannot stop providing the entire house, and therefore it is the responsibility of the management company to collect debts from individual non-payers. If it is not possible to obtain the required amount, the management company must repay the obligations.

The management company needs to take a set of measures to collect debts from the owners of the premises. To solve the tasks, the management company can:

• disconnect non-payers from the local network;
• make an appeal to the court.

At the same time, the management company must take measures to influence debtors solely in accordance with the agreement concluded between it and the residents of the house.

At the same time, the management company can transfer the debts of the owners of residential premises in the house to the agent - the manager who conducts operations on the settlement account of the owners of MKD. When an agreement is concluded with a business organization, such accounts are created. As a rule, they are located in Sberbank.

Since, in fact, the money belongs to the owners of the premises, and not to the management company, the agent does not always repay the debt this enterprise. All settlements in force with the resource supplying organization must be carried out on certain days of the month specified in the contract. All leftovers financial resources, except for the legal remuneration of the economic enterprise, remain on the account. The management company cannot spend them for purposes not indicated in the terms of the contract. If the MC becomes bankrupt, the collection of debts cannot be directed to this account. Such a scheme operates in the interests of the owners of residential premises. If the management company goes bankrupt, a new management company will start working instead. Another option is the formation of a homeowners' association, which will act as a new manager.

An agreement concluded with an agent may provide for the transfer of debts of the management company to the enterprise supplying resources. Of course, this requires the consent of the homeowners. If this clause is absent in the agreement, the agent has the right to refuse to repay the debts of the Criminal Code. It is also impossible to impose on the agent the obligation to pay debts in a judicial proceeding.

Debts to resource-supplying organizations may cause termination of the contract

Not only the Civil Code of the Russian Federation (clause 1 of article 546 together with clause 3 of article 523) contains a provision on the right of a resource supplying enterprise to refuse to fulfill a contract for the supply of services. This is also stated in Decree of the Government of the Russian Federation dated February 14, 2012 No. 124 “On the rules that are mandatory when concluding contracts for the supply of communal resources for the purposes of rendering communal services”.

Rules No. 124 is a special normative act regulating the procedure for concluding, fulfilling and terminating an agreement for the supply of resources between the North Ossetia and the Criminal Code (HOA and other communities, which are mentioned in Article 161 of the RF LC).

One of the parties may refuse to fulfill the contract for the supply of resources. But for this it is necessary to have certain legal facts.

1. The contractor has a debt for certain type utility resources in an amount exceeding the amount of this service for three billing months. In addition, confirmation of the existence of these unliquidated obligations is required. Such an argument may be a signed act of reconciliation of mutual settlements or a court decision. But in judicial practice, this document is not considered as unconditional evidence of the existence of a debt. The act of reconciliation of mutual settlements is a weighty argument if there are other grounds: contracts concluded with resource-supplying organizations, acts of transferred water, gas, heat, electricity, invoices for payment, claim correspondence.

The law on resource supplying organizations allows them to withdraw from the contract if:

• The Criminal Code, the HOA or another specialized community violated the contract, namely, it owed payment for three billing months;
• there is a document confirming the violation: an act of reconciliation or an act of the court.

2. The contract for the supply of resources contains information about the right of counterparties to unilaterally withdraw from it. The implementation of such an action should not conflict with the terms of clause 30 of Rule No. 124. Since the clause in question is of a dispositive nature, that is, it allows the parties to freely dispose of their rights, the parties to the contract for the supply of resources are free to refuse to fulfill it. That is, according to paragraph 30, the resource supplying organization can prescribe in the contract a condition for the unilateral termination of obligations. If nothing is said about such a right or the procedure for refusal is not fully described, as paragraph 30 of Rules No. 124 implies, resource supply organizations have no reason to terminate contracts.

AT this moment there is practically a unified jurisprudence related to the implementation of the RSO unilateral cancellation of contracts. If the agreement between the resource supplying organization and the management company (HOA, another group) does not contain the terms for the termination of obligations at the initiative of one of the counterparties, it is unlawful to refuse to execute the contract. However, according to some courts, a resource supplying organization can also assert its right to terminate the contract in court (clause 2, article 450 of the Civil Code of the Russian Federation). But in reality, there are practically no cases with a positive outcome for RSO.

Let's take an example. In order to substantiate the notice of refusal to fulfill the terms of the contract unilaterally, the resource supplying organization cited certain provisions of the Civil Code of the Russian Federation and clause 30 of Rule No. 124. The court said that the agreement on the provision of resources does indeed contain a condition on the possibility of the supplier to terminate it and stop the supply of heat in two cases: if the consumer repeatedly violated the terms of payment for the resource and if there was a systematic (two billing months) debt on his part. This condition was agreed in the document by the parties. However, the court considered that the procedure for terminating the contract described in its text does not meet the requirements of clause 30 of Rules No. 124 (decision of the Fifteenth Arbitration Court of Appeal of November 29, 2013 No. 15AP-17471 / 2013 in case No. A53-9033 / 2013). The Criminal Code is also vested with the right to apply to the antimonopoly service.

Expert opinion

An example when the actions of the TCO were qualified as an abuse of position

Kirakosyan S. A.,

Candidate of Law, Associate Professor of the branch of Kuban State University (Novorossiysk), independent expert under the Ministry of Justice of Russia on anti-corruption expertise of legal acts, partner of Estok-Consulting

The Penza OFAS RF issued a decision dated August 24, 2015 in case No. 2–03/19–2015, according to which it recognized that the heat supply organization (TSO) acted unlawfully. When reviewing the Federal Antimonopoly Service of the Russian Federation in Penza, it was found that the contracts for the supply of electricity between the TCO and the UK, the HOA did not stipulate the conditions under which the supplier of last resort may refuse to fulfill the agreement. In addition, the amount of debt of some management companies and HOAs did not exceed the amount of electricity for three billing months. However, the organization sent notices to the management enterprises and HOA about the refusal of the agreement. Such actions were recognized as unlawful, since the TCO had abused its powers. This was regarded as a violation of Part 1 of Art. 10 of the Competition Law. OFAS according to Rostov region issued a similar decision of December 23, 2015 in case No. 213/02.

Obligations of the resource supplying organization to terminate the contract unilaterally

RSO may unilaterally refuse to comply with the terms of the contract. The order of this procedure is conventionally carried out in several steps.

1. The resource supplying organization is obliged:

• inform users (homeowners) about the debt of the management company, HOA or other specialized group for payment of utility bills;
• talk about the procedure for switching to the conclusion of direct contracts with consumers for the provision of CG, their obligations to pay for utilities directly to the supplier's cash desks or transfer funds through its paying agents;
• invite the owners of residential premises to make a choice in favor of one or another management company or choose a different method of managing the house (HOA or direct method of management if the building has less than 16 apartments).

There is no single approved form for notifying users. The resource supplying organization determines it at its own discretion. Certainly, the best option will be the placement of a written notice on the information stands in the MKD (namely, in the entrances). Announcements of this kind are often duplicated in local newspapers or on the RSO websites.

Note that notifying users of the withdrawal from the contract is a prerequisite.

2. RSO must provide services to honest payers immediately until the moment when an agreement is concluded with a new CG executor, or when the owners sign an agreement with a resource supplying organization directly (if they prefer a direct method of management).

That is, until the supplier is provided with a document on the choice of a different management company, or the method of managing the house changes to an HOA or personal management by the owners, services should be provided to users according to the previous scheme. The basis for this is the contract, which says about the conditions for the provision of communal resources, concluded through conclusive actions. The implicit actions here are the supplier's decision to cancel the contract with the MC and switch to signing direct agreements with CG users.

Since, within the framework of such relations, the resource supplying organization is obliged to provide services to consumers, it is endowed with all the obligations of their contractor, which are stated in the Rules for providing CU to owners and users of premises in MKD and residential buildings, approved by Decree of the Government of the Russian Federation dated 06.05.2011 No. 354. That is the management company should not charge a fee for the provision of communal resources during the period of provision of the KU RSO.

Thus, the right to refuse to fulfill the terms of the contract for the supply of water, gas, electricity, heat unilaterally is regarded by some RNOs as an opportunity to simplify the transition to concluding direct contracts with users. Other resource-supplying enterprises attribute this to even greater inconvenience in organizing the collection of data on individual readings of PU, charging, issuing and accepting payments, filing claims and accepting claims. Therefore, even if we edit clause 30 of Rules No. 124 and indicate in it the imperative right of the service provider to refuse to fulfill the terms of the contract in a unilateral format, the problems in the CG provision industry cannot be solved. It remains to count on positive changes in the current year, in accordance with which direct contracts with resource supply organizations in 2017 will be concluded by users according to a legal scheme. Enterprises for the supply of gas and electricity have been operating according to such schemes for quite a long time.

In relations for the provision of public services, in addition to consumers and suppliers of public resources, there is someone - a performer.

When the owners of the premises in the house choose the direct form of management, this person remains unknown. Let us consider whether the resource supply organization (RSO), with which the owners of the premises have signed direct contracts for the acquisition of communal resources (contracts for the maintenance of intra-house networks are concluded by the owners with other organizations) in the case of choosing direct management, is a utility service provider with all the ensuing consequences.

Reading the legislation

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

– produce or acquire a communal resource;

- Responsible for housekeeping engineering networks through which they provide utility services to consumers;

- provide public services to consumers.

A literal interpretation of this definition suggests that entity and individual entrepreneurs cannot be considered as utility service providers if at least one of the above elements is absent in their activities. The contractor of public services, depending on the method of managing the house chosen by the owners, can be:

- Homeowners associations, housing cooperatives, residential complexes and other specialized consumer cooperatives;

- and in case of direct management - another organization producing or acquiring communal resources.

With direct management, the RSO often only supplies a communal resource to the border of the networks that are part of the common property, but is not responsible for servicing intra-house engineering networks and does not provide utility services to consumers. This provision is enshrined in, in accordance with which, with direct management, the owners enter into an agreement on the acquisition of communal resources with the corresponding RSO. At the same time, maintenance of intra-house engineering systems is carried out by persons involved under an agreement by the owners of premises in an apartment building, or by the owners themselves, unless otherwise provided by the agreement with the RSO. Thus, in strict accordance with the legislation of the North Ossetia, with which the owners who directly manage the house have entered into contracts for the purchase of communal resources, it is not a utility services provider.

This statement does not raise doubts in terms of imposing on the RSO the responsibility for the maintenance of intra-house engineering networks. However, the question of the fulfillment of the RSO of other duties assigned to Rules provision of public services on the utility service provider, remains open.

Interpreting the law

Rules for the provision of public services extend their effect to the relationship between performers and consumers of public services ( item 1). However, due to their item 8 the terms of the agreement on the acquisition of communal resources and water disposal (reception (discharge) of wastewater), concluded with the RSO in order to provide the consumer with utility services, should not contradict the rules themselves and other regulatory legal acts of the Russian Federation. It is worth paying attention to the fact that “should not contradict” in the context of the mentioned norm does not mean “should correspond” to them.

Besides, item 7 establishes the limits of liability of RSO under the contract with consumers. Thus, RSO is responsible for the mode and quality of supply of cold and hot water, electricity, gas and heat, as well as water disposal at the border of networks that are part of the common property of the owners of premises in an apartment building.

Ministry of Regional Development of the Russian Federation Letters No. 29.11.2007 21492-SK / 07 "On the conclusion of contracts between utility service providers and resource supply organizations" and dated 13.02.2007 No. 2479-RM / 07 "On the application of clause 8 of the Rules for the provision of public services" gives a broad interpretation of the said norm, pointing out the need to comply with the terms of contracts with the RSO in terms of:

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

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

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

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

- liability of the parties to the contract;

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

The main purpose of the broad interpretation is to prevent violation of the rights of consumers who fully fulfill the obligations established by the legislation of the Russian Federation and agreements. It should be noted that in the text Rules provision of public services contains contradictions that do not allow them to extend their action exclusively to relations between performers and consumers of public services.

For example, clause 9 of the Rules for the provision of public services stipulates that an uninterrupted supply to the dwelling must be ensured communal resources proper quality. However, this paragraph is in conflict with the entire concept of the document under consideration. Thus, the performer provides the consumer public utilities . For these purposes, RSO supplies communal resource to the border of networks that are part of the common property, but not to every residential building (before entering the house). RSO does not have the right to supply a communal resource through intra-house networks, since they are part of the common property. The duties of the RSO, therefore, are limited to the uninterrupted supply of communal resources before entering the house. It seems that this provision should be reflected in the current legislation.

One more example - sec. X Rules for the provision of public services governs the suspension and limitation of the provision utilities . At the same time, in 82 for the first time mention is made of the suspension (or restriction) of filing communal resources . AT paragraphs 80, 81 It's only about utilities.

The examples given show that the provisions Rules for the provision of public services relate both to communal services and, accordingly, are related to the activities of the contractor, and to the activities of the RSO for the supply of communal resources. In this regard, the position of the Ministry of Regional Development of the Russian Federation on a broad interpretation item 8 document under consideration seems appropriate.

There is no doubt about the validity of this opinion. The fact is that what rights and obligations would not be endowed rules provision of public services performers, the actual implementation of these rights and obligations directly depends on the RSO. In practice, homeowners associations and managing organizations are just intermediaries between citizens and RNOs. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter No. 13.02.2007 2479-PM/07, the provider of utility services has the right to demand the establishment of parity relevant Rules for the provision of public services terms of contracts with the RSO by agreement of the parties, and in the absence of such an agreement - in a judicial proceeding. It seems that the owners who directly build relations with the RSO (with a direct form of management), all the more have the right to demand that the obligations of the executor be performed by the RSO.

Nevertheless, we have to admit that in practice the clarifications of the Ministry of Regional Development of the Russian Federation are not always implemented. This is facilitated by both objective and subjective reasons. The former include the dependence of the RNO on energy legislation (for example, the procedure for suspending or restricting the supply of electricity, established by the Rules for the Functioning of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry, does not correspond to the procedure provided for Rules for the provision of public services). Subjectivism is manifested in the application of the current legislation by the judiciary.

We turn to the arbitrators

A generalization of judicial practice leads to the conclusion that the owners of premises in apartment buildings do not at all apply for judicial protection and do not ask to assign the duties of a utility service provider to the RSO. They simply regularly pay the bills issued to them by these organizations.

Nevertheless, the position of the arbitrators regarding the problem under consideration can be seen in the disputes between the RNO and Rospotrebnadzor. Such cases are exactly the case when a state body ( federal Service on supervision in the field of consumer protection and human welfare) may apply to the court for the protection of an indefinite number of persons (residents of a particular house). This is of particular relevance precisely in the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court in the claims of the RNO, which were brought to administrative responsibility for violating the requirements of legislation in the field of consumer protection.

So, the fundamental difference between the contractor of the utility service and the RSO is the fulfillment or non-fulfillment of the obligation to maintain intra-house engineering networks. Otherwise, the RSO is not exempt from the obligation to comply with the requirements Rules for the provision of public services. Doubts that arise in practice can be explained primarily by the imperfection of the legislative framework. The solution to the existing problem is seen in the introduction of amendments to the regulatory legal acts that regulate the relationship between contractors and consumers of public services. The publication of fundamentally new acts capable of regulating relations with the North Ossetia is not ruled out.

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

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

Approved by Decree of the Government of the Russian Federation of February 12, 1999 No. 167.

There are no grounds for reviewing the case by way of supervision (Determination of the Supreme Arbitration Court of the Russian Federation dated February 10, 2009 No. 57/09).

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

Basic concepts

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

To this type companies include organizations that provide:

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

Also similar legal status are awarded to companies that provide such services as getting rid of insects and small pests (rats, moles, etc.), removal of solid waste, sale street lighting etc. Everyone knows GorGaz and Energosbyt - typical examples RSO.

Can RSO be considered UK

The management company is a legal entity designed to operate residential buildings and regulate the actions of contractors. The Criminal Code operates on the basis of agreements with apartment owners. The management company is an intermediary between the tenants and the RSO. It is responsible for transferring the funds of apartment owners for paying for the services of companies involved in the provision of resources. UK - acts as a service provider, and RSO, in turn, is a subcontractor.

It follows from this that the RSO cannot act as a UK, since they are limited to only one type of activity and do not have the right to take part in the management of the house. However, direct settlements between RSOs and residents on the basis of formal agreements are acceptable.

Responsibility of RSO for errors in calculations

According to federal law No. 176, together with the Housing Code of the Russian Federation, the calculation of utility bills is the prerogative of the service provider. In the event of even minor errors in the calculations, a fine of 50% of the original amount is imposed on the organization.

If an error in the calculation was discovered, it is necessary to submit written statement to the relevant company. If the service provider has not taken any action, you should file a complaint with Rospotrebnadzor.

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

Features of direct cooperation

Resource-supplying organizations have the right to act as a utility service provider if the house is managed directly by the owners of the apartments (i.e. bypassing the UK).

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

Direct settlements with RSOs have a number of positive aspects:

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

There are also negative features:

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

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

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

1. This form of management was chosen at a general meeting of tenants. Actual for houses with a small number of apartments.
2. The users of the services are the owners of non-residential premises.
3. When the contract between the Criminal Code and the tenants ended. With the drawing up of a new contract, the management company again assumes the duties of a utility service provider.
4. The owner of a private house acts as a resource user.
5. The HOA has debts to the RSO that exceed the average cost of services over the past 3 months.

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

Such cooperation can be distinguished both positive and negative sides. Pros:

• lack of costs for providing the bureaucratic apparatus of the Criminal Code;
• tenants get the opportunity to cooperate with any contracting companies, including on a short-term basis, this can be saved by choosing more advantageous offers.

The disadvantages include:

• home management becomes less efficient, general meetings of residents do not always allow solving the tasks;
• the opportunity to carry out a major overhaul of the building with the use of money from the Housing and Utilities Reform Assistance Fund is lost.

On the video about direct cooperation with resource-supplying organizations

Conclusion

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

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

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

What is a resource organization

This organization is the producer of a particular resource. Also, the resource supplying organization acts as a supplier.

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

Management company or HOA and RSO

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

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

Although the provision of resource management services is not directly prohibited by law, in practice they delimit themselves from such activities. Because for the most part, large investments are needed to carry out the activities of the RSO.

UK - utility services provider

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

In this regard, the management company acts as a utility service provider, both to residents and to the RSO:

1. In the first case, the responsibility lies in the timely and continuous supply of resources.
2. Responsibility to the RSO is to pay for the supplied resources in a timely manner.

Thus, there are two different contractual relations on the same occasion. On the one hand, the management company enters into a service agreement with residents of apartment buildings, on the other hand, with the RSO.

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

Decree No. 124

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

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

Sample resource supply agreement with a management company

The contract for the supply of resources, concluded between the tenants and the contractor, contains the rights and obligations of the parties. For its part, the Management Company undertakes to ensure the subcontracting supply of resources, on the other hand, the tenants undertake to pay utility bills in a timely manner.

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

Debts of management companies to resource supply organizations

In cases where the Criminal Code acts as a utility services provider, all responsibility for funds not paid on time to the RSO falls on it. RSO is not entitled to directly demand debts from consumers of resources when there is no direct agreement between them. And with the UK, the calculation of RSO is not for each individual consumer, but in general for the resources consumed by one or another house.

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

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

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

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

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

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

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

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

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

This is done in order to protect the interests of residents. After the bankruptcy of the management company, another management company may take its place or an HOA is formed, which will become the new manager.

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

Ways to restructure the debts of the management company

Legislatively, there is no provision for restructuring the debt of the management company to resource-supplying organizations. However, the complete lack of resource supply and the bankruptcy of the management company is not beneficial to either party or the residents. So RSO often resort to such a method as concluding an agreement on restructuring the debt of the Criminal Code.

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

UK is a scammer

AT recent times More than 15,000 cases of fraudulent actions by the Criminal Code have been officially identified. In most cases, they present utility bills to residents, receive payment from them, but the funds do not reach the resource supply organizations. As a result, the Criminal Code is simply declared bankrupt, and the money disappears.

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

Direct payments to resource-supplying organizations

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

Utility bills and payments to the funds will also be made in the name of the organization. This has both positive and negative aspects.

The positive aspects of the conclusion of the contract directly include:

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

The negative ones include:

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

In addition to direct contracts with a resource-providing organization, there has recently been a growing trend towards a complete rejection of both the management company and the HOA. In many ways, the reason for this was the abuses that were committed by officials of these organizations. In 2018, the right of residents of multi-apartment buildings to exercise full direct management of the common property of the house was legally enshrined.

This attitude also has its pros and cons.

The positive features include:

• lack of expenses for the maintenance of the administrative apparatus;
• individual responsibility of each tenant;
• savings on one-time involvement of contractors for certain needs at home.

The available disadvantages are:

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

Thus, a complete rejection of the Criminal Code also does not seem effective to consumers, as well as granting it the authority to perform public services. It becomes obvious that when drawing up contracts with a management company or establishing an HOA, it is necessary to limit its rights only to ensuring the management of common property and the performance of current and major repairs, and to entrust other responsibilities to resource supply organizations.

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

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

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

In particular, the letter explains in detail the mechanism for protecting citizens from receiving “double” utility bills after switching to direct contracts. If, after the conclusion of a direct contract, the managing organization continues to charge utility bills, it will have to pay a fine to consumers who were presented with such payment documents. In addition, the experts of the Ministry noted that when concluding direct contracts, the utility provider becomes the resource supplying organization, and it is this organization that is responsible for submitting payment documents to consumers. Therefore, issuing payment orders by a person managing an apartment building, in this case, is a violation of the license requirement. Licensing control in relation to managing organizations is carried out by the bodies of state housing supervision of the constituent entities of the Russian Federation.

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

The letter also explains that the payment for general house needs when switching to direct contracts is billed by the resource supplying organization to the person managing the MKD, and the latter bills the appropriate fee to the owners of the premises in the apartment building as part of the payment for the maintenance of the dwelling.

When asked how the readings of individual and collective (common house) metering devices would be transmitted during the transition to direct contracts, the Ministry of Construction of Russia answered that it would provide resource-supplying organizations with the information necessary for calculating utility bills, including the readings of individual metering devices (when such indications are provided by owners / tenants) and collective (general house) metering devices, the persons who manage the MKD must.

Answers to a number of other questions are given.

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

In a relationship this ground termination of the resource supply agreement, the Ministry of Construction of Russia also explained that in this case, the amount of debt for a communal resource used for the provision of communal services is legally significant. The presence of debt for communal resources consumed for the purpose of using and maintaining common property in an MKD is not a basis for a unilateral refusal of the RSO to fulfill the resource supply agreement.

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

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

“Direct settlements” is the payment by the consumer for utility services through paying agents (or directly) directly to the resource supply organization (RSO), which supplies utility resources under an agreement with the utility service provider.

Such calculations are regulated by Article 155 of the Housing Code of the Russian Federation and the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 05, 2011 No. 354.

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

1.1. Direct settlements - a method of paying utility bills by a consumer who is liable for the corresponding payment to the managing organization, HOA, housing cooperative, and does not entail the emergence of contractual relations between the consumer and RSO.

In other words, the so-called direct settlements are only a special way of fulfilling the obligations of the owners of the premises to the utility service provider, the obligation itself remains unchanged.

Therefore, it is obvious that the decision by the owners of the premises to pay directly for the consumed communal resources does not relieve the management company, as a contractor of communal services, of the obligation to conclude resource supply contracts.

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

— under the direct management of the owners of MKD;

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

In other cases, utility services are provided by managing organizations, HOAs, housing cooperatives.

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

2. Basis and algorithm for switching to direct calculations

The basis for the transition to direct settlements with the RSO is the decision of the general meeting of owners of premises in the MKD (members of the HOA, housing cooperative), adopted in accordance with the requirements of the LC RF. Such a decision does not require coordination with public authorities, as well as with the board of the homeowners association, housing cooperative managing or resource-supplying or other organizations. This decision is binding on all consumers.

2.1. Hold a general meeting of owners of MKD premises at which to raise the issue: “Changing the procedure for paying for utilities (heat supply, electricity, water supply and sanitation), by paying directly to the resource supplying organization (with the exception of utilities consumed when using common property in an apartment building) ".

2.2. Determine the date of the transition at the meeting.

2.3. Send a copy of the Minutes of the general meeting to the utility service provider (Managing organization, HOA, housing cooperative) and the resource supply organization.

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

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

4. Who issues payment documents?

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

Thus, this payment option does not allow the management company (HOA, LCD) to achieve the goal of withdrawing from the provision of public services.

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

Chairman of the Board

HOA "Altair"

Krasnoyarsk

Kolesnikov Viktor Alekseevich

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

Basic concepts

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

This type of company includes organizations that provide:

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

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

Can RSO be considered UK

The management company is a legal entity designed to operate residential buildings and regulate the actions of contractors. The Criminal Code operates on the basis of agreements with apartment owners. The management company is an intermediary between the tenants and the RSO. It is responsible for transferring the funds of apartment owners for paying for the services of companies involved in the provision of resources. UK - acts as a service provider, and RSO, in turn, is a subcontractor.

It follows from this that the RSO cannot act as a UK, since they are limited to only one type of activity and do not have the right to take part in the management of the house. However, direct settlements between RSOs and residents on the basis of formal agreements are acceptable.

Responsibility of RSO for errors in calculations

According to federal law No. 176, together with the Housing Code of the Russian Federation, the calculation of utility bills is the prerogative of the service provider. In the event of even minor errors in the calculations, a fine of 50% of the original amount is imposed on the organization.

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

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

Features of direct cooperation

Resource-supplying organizations have the right to act as a utility service provider if the house is managed directly by the owners of the apartments (i.e. bypassing the UK).

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

Direct settlements with RSOs have a number of positive aspects:

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

There are also negative features:

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

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

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

1. This form of management was chosen at a general meeting of tenants. Actual for houses with a small number of apartments.
2. The users of the services are the owners of non-residential premises.
3. When the contract between the Criminal Code and the tenants ended. With the drawing up of a new contract, the management company again assumes the duties of a utility service provider.
4. The owner of a private house acts as a resource user.
5. The HOA has debts to the RSO that exceed the average cost of services over the past 3 months.

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

Such cooperation has both positive and negative sides. Pros:

• lack of costs for providing the bureaucratic apparatus of the Criminal Code;
• tenants get the opportunity to cooperate with any contracting companies, including on a short-term basis, this can be saved by choosing more advantageous offers.

The disadvantages include:

• home management becomes less efficient, general meetings of residents do not always allow solving the tasks;
• the opportunity to carry out a major overhaul of the building with the use of money from the Housing and Utilities Reform Assistance Fund is lost.

On the video about direct cooperation with resource-supplying organizations

Conclusion

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