The utility service provider must have the following characteristics. Utility service provider

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

By May 1, 2008, all apartment buildings should find responsible persons who will be entrusted with the management of each of them (or the owners prefer to independently manage the house). Both owners and authorities can choose the method of management by holding an open tender. From the point of view of officials, the most preferable option is to choose a management organization - a professional market participant. Since both the institute of management of an apartment building and such a subject as a 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 contradictory arbitration practice and numerous questions submitted to the editorial office. This article discusses the legal status of the managing organization.

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

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

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

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

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

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

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

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

Housing Code

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

Note. An apartment building management agreement is concluded:

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

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

Utility rules

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

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

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

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

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

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

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

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

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

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

Managing organization - subscriber

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

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

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

Since the managing 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 contract is concluded with a subscriber if he has a power receiving device that meets the established technical requirements, connected to the networks of the power supply organization, and other necessary equipment. However, the arbitrators of the FAS SKO found it sufficient that the electrical installations (power receiving devices) were transferred to the management organization (Resolution of 18.01.2007 N F08-7066 / 2006).

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

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

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

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

Breakthrough date

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

It was this conclusion that was guided by the Seventeenth Arbitration Court of Appeal in the Resolution of 28.11.2007 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 management agreement of this building, concluded by the owners of the premises with the management organization on March 28, 2006. The reason is the absence in the contract of such essential conditions as the obligation of the managing organization to provide the owners of utilities, their list and the amount of payment. Since the defendant does not belong to organizations that have housing stock on any property right, is not an association of owners to which the right to manage an apartment building has been transferred, and is not a specialized organization providing utilities, the inclusion in the contract of the obligation to provide utilities did not correspond legislation in force at the time of the conclusion of the contract. In other words, the management organization was not a utility service provider and the owners did not receive a corresponding task.

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 stressed that such powers of attorney are not required after the conclusion of the management contract.

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

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

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

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

Features of the power supply contract

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

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

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

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

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

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

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

To illustrate the above, we will cite several situations. Section VII of the Rules for the Use of Public Water Supply and Sewerage Systems in the Russian Federation provides for the possibility of stopping or limiting the supply of drinking water and (or) the intake of wastewater, in particular if the subscriber violates the payment terms. However, according to paragraphs. "d" clause 50 of the Rules, the utility service provider has the right in the manner provided for in Section X of the Rules, to suspend and restrict the supply of only hot water, electricity and gas to the consumer. Consequently, the contract for the supply of drinking water, concluded between the organization of the WSS and the management company, cannot contain conditions on the suspension or limitation of the supply of water in the event of a debt from the management organization. A similar conclusion 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 IV quarter of 2006 (answer to question 28).

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

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

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

E. V. Ermolaeva

Magazine editor

"Housing and utilities:

accounting and taxation "

The resource supplying organization is an important player in the public services market. The benefits of modern civilization that ensure the comfort of our homes, be it water, heat, gas or electric energy - all this is provided by the RNO to the inhabitants of the MKD. Let's consider the features of the work of management organizations with resource providers in more detail.

What are RNOs? 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 required resources and their suppliers. Here are some examples.

• A city water utility directs water through pipes to homes. Accordingly, when we open a tap in our house, we use hot or cold water.
• Several companies are responsible for heating in the autumn-winter period. If we consider houses in which individual heat supply operates, such buildings have their own boiler houses, heating stations. They can be installed both on the roof and in the yard. If the city supplies heat to the house, the responsibility of the resource-supplying organization - heating networks - appears.
• Hydroelectric power plants generate electricity. 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.

In this way, resource providers deliver essential goods that consumers use every day. Payment for their services is made in accordance with current prices. The tariffs of resource-supplying organizations are different for each Russian region.

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

Currently, apartment buildings are managed by:

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

In the latter case, when one owner speaks on behalf of all tenants (this can also be a trusted person), the resource supplying organization becomes the executor of utilities. Other situations, when the same enterprises act as a supplier of KU, are as follows:

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

The Resolution of the Government of the Russian Federation No. 354 lists the rules under which resource-supplying organizations can become providers of public services.

Can a resource supplying organization be a management company

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 MC 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 a CU executor and a user contractor. RNO is a subcontractor on the basis of an agreement concluded between the CM and RNO.

In addition, the management company maintains the common property, draws up a renovation 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 involved in the general management of residential objects.

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 supplying organization

According to the plan, consumers will be able to conclude direct contracts with resource supplying organizations in 2017. Such agreements will be permitted in a number of cases.

• If the services are used by the owner of a private dwelling.
• If the general meeting of residents chooses the direct management option. Usually this form is convenient for small houses with less than 16 apartments.
• If users are owners of non-residential premises in MKD.
• If the HOA or management company has 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 contractor of the CU and the consumers ceases to be valid until the entry into force of the new agreement.

In a number of these situations, the owners of residential properties have the opportunity to conclude direct contracts and carry out direct settlements with resource supplying organizations.

However, this issue has both pros and cons. These are the main advantages of such a scheme.

• There are no expenses for maintaining the Criminal Code.
• No collective responsibility... The owner, who pays for CU in a timely manner, is not affected by the debts of unscrupulous neighbors.
• Possibility of attracting contractors for housing maintenance for a short period. Due to this, it is possible 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 are the following:

• The efficiency of MKD controllability decreases... Important issues will require general meetings, which may not lead to agreement among all participants.
• The impossibility of performing overhaul in the house with the involvement of finances provided by the Fund for Assistance to Reforming Housing and Utilities.

How does the management company interact with resource supplying organizations

Many owners of residential premises in MKD are not aware of the interaction between the management company and the resource supplying organization. It is the Criminal Code, as 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 the cooperation of the Criminal Code and the RSO, but there are also disadvantages. Not all homeowners pay utility bills without delay. Since the Criminal Code, representing the owners, prescribes an obligation on timely payment for consumed resources and other services, in case of non-payment, it is responsible.

With an increase in the amount of outstanding obligations, the resource supplying company has the right to summon the Criminal Code to court and collect debts from it. Many management companies deal with bailiffs, and then go bankrupt. That is why, being responsible for the entire ICM, the Criminal Code is certainly at risk.

What agreement should a management company conclude with a resource supplying organization

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

• Delivery contract

The most common type of agreement. It can be concluded, for example, for the provision of electricity. The agreement 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 prescribes the timing and quantity of supplies, 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). The employees of the management company always have the opportunity to take measurements. In the event of significant differences in the indicators from those indicated in the contract, we can talk about the conduct of the RNO of unfair activities.

• Contract for services

An 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, indicate the time frame in which garbage collection is supposed to be, approximate cleaning hours and the frequency of cleaning during the week. The agreement can also provide for liability measures for failure to comply with certain points.

• Work agreement

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

The agreement provides for liability measures for failure to comply with certain points of the agreement. These chapters are important, as they can affect both the extension of the contract of the Criminal Code with the resource supplying company, and the termination of cooperation.

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

Step 1. Exploringthe official website of the resource supplying organization.

Step 2. Prepare a package of documents for transfer to RNO, which are required to conclude contracts for the supply of utilities.

If an apartment building was connected (technologically connected) before the Decree of the Government of the Russian Federation of 13.02.2006 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 the networks of engineering and technical support ", the corresponding documentation is attached to the offer (application).

Step 3. We contact the RSO to conclude a contract for the supply of utilities.

There are certain rules that must be followed when concluding agreements between the MC, HOA or housing cooperative with a resource supplying company. However, they do not determine the method of providing prepared documentation and an offer for concluding agreements for the provision of corporate governance. 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 RNO. The opening hours of the company are indicated on its official website.

Step 4. Waiting for a response from the RSO

Resource supplying organizations are obliged, within 30 days, to give consent or refusal 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 about this in writing. She has five working days for this from the date of receipt of the offer.

If, within 30 days from the date on which the consideration of the submitted documentation was suspended, you do not hand over 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 renegotiating a contract with a resource provider

• Consider your dates in advance

The minutes of the general meeting, the MKD management agreement must contain the dates of the start of activities suitable for you. They definitely 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 “walk into the house,” advise homeowners on the optimal numbers.

The document must contain a comparison of at least two dates: the day of the general meeting of homeowners in the apartment building and the beginning of the implementation of the obligations stipulated by the management contract.

It will be better if you write down the following directly in the agreement: "the date of commencement of the fulfillment of obligations under this agreement is" 01 "_______ 201___." Then 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 number relative to which the CM must provide services to users. This is stated in clause 19 of Regulation No. 124.

The obligation to provide utility services appears with 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 should 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 clause 14 of the Rules for providing CG to owners and tenants of apartments. This provision was approved by the Decree of the Government of the Russian Federation of 05/06/2011 No. 354.

If you do not think over the days of acceptance / transfer of MKD control in advance, you run a significant risk.

• At first, you can skip the time at which you need to send a claim to the supplier. During the period until you submit the documentation, the resource supplying company presents invoices for the CU provided by the previous management company. Another option is no charging. Here, concluding a contract for the supply of resources with you, RSO will recalculate and issue you invoices for the missed time.

The Supreme Court of the Russian Federation has formed its own opinion on this issue, but not every resource-supplying organization takes it into account. The RF Armed Forces noted that when apartment buildings are removed from the company's management, it is possible, based on this, to terminate the 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 to manage an apartment building (power receiving device), this does not become the basis for imposing the obligation to pay for CU on a person who no longer has a legal and actual connection with these devices.

• Secondly, the emergence of a cash gap is inevitable. Let's say that 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 indications of general house and individual metering devices (ODU, IPU) in all rooms of an apartment building on that day? If the former managing organization removes the indicators of the ODPU, for example, on July 18, and the one that recently took up its duties - on August 2. In this case, resource supplying organizations ask to pay for the delta, since during the break, residents of the apartment building continued to use all KUs. The settlement period for the repayment of utility bills here becomes a calendar month (clause 37 of Regulation 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 of 04.05.2012 No. 442, further - 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. In this way, you will avoid discrepancies in the calculations of expenses and revenues of the new and old management organizations, as well as the likelihood of recalculations between them and the resource supplying company.

• Draw up an act of taking readings 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 from the ODU. This rule has not been put forward at the legislative level, but in practice this document is necessary. The act is required to be signed by two parties: transmitting and receiving. He explains who is responsible for the payment of utilities and how much resources were used.

Suppose the act is made on July 31, 2017.The document indicates the date and readings 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 of all resources consumed until July 31, 2017, inclusive, is the responsibility of the former economic organization, and it is necessary to settle accounts with the new management company from August 1.

• Send documents to the RSO in time to conclude an agreement

The responsibilities 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 on its selection was made, includes sending an application to the RNO 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 utilities from a legal point of view, in this case it is impossible to change their contractor in an automatic mode. But in reality, other situations arise. The resource supplying company also looks at the minutes of the general meeting of owners, in particular, the procedure for providing CU and settlement for them, which was in effect before it was decided to choose a new managing organization (part 18 of article 12 of Federal Law No. 176-FZ), has been preserved or changed.

It also happens that the management company is in no hurry or simply does not have the ability to provide the RNO with documentation in full in accordance with Rules No. 124. The Ministry of Construction of the Russian Federation fights for the right of a resource supplying organization to act as a utility service provider, if there is no contract for the supply of resources, situations when the house is managed by a management company or a homeowners' association. Parts 5, 6, 6.3, 7 and 7.1 of Art. 155 of the RF LC is used if an economic 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, electricity. The application of these provisions is impossible if the resource supplying organization is a utility service provider.

This point of view can be challenged, since all the rules mentioned in it are created by the person who is paid for CU, depending on the method of managing the apartment building, and not on the presence or absence of the designated persons of supply contracts 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 an executor of CG. And in this case, she is obliged to provide services to the end user and pay for the use of utilities with the enterprises that supply them.

Expert opinion

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

Maria Goryacheva,

head of the Division of Litigation and Claims Work of the Legal Department of PJSC GC "TNS Energo"

If a company does not have a license, this does not mean that the management contract must unconditionally and automatically terminate. In this case, we are also talking about a contract for the supply of resources. The agreement terminates if the owners of residential premises in the MKD abandoned it, chose 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 ZhK RF, clause 32 of Rules No. 124.

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

It is necessary to reconcile the invoices sent to you by the resource supplying organization with the terms of the service supply contract. Does the contract permit the use of a multiplying factor? Have you signed an additional agreement? If you gave no answer to both the first and second cases, the resource supplying company cannot increase the payment for the reasons described below.

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

The use of a multiplying factor by default is unacceptable in settlements for corporate governance in accordance with agreements concluded earlier than 2017, under Art. 422 of the Civil Code of the Russian Federation. This means that the rule about using a PC between the resource provider and you is not retroactive. The condition for the application of a multiplying coefficient 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 a new edition. When you amend your contract in this way, you acknowledge that a multiplier may be used in the calculation.

If you signed the supplementary agreement, the resource supplying organization will display in the contract the necessary information on the application of the multiplying factor when it is renewed. In your contract for the supply of resources, the period of its validity is indicated, and upon re-execution the payment scheme will be different. 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 the conclusion of agreements come into force.

Expert opinion

To which utilities and which PC can RSO apply

Gulnaz Nikitina,

expert of the help 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 coefficient. Let's dwell on them in detail.

1. Payments for heat energy.

Determination of payment for heat energy is carried out taking into account the standard of heating consumption and the total footage of premises in apartment blocks for residential and non-residential purposes using a multiplying coefficient. PC is 1.1.

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

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

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

The resource supplying organization has the right to use a PC in a number of cases. All information on the procedure for using the PC is given in the table This is stated in subparagraphs "f", "g" of clause 22 of the Rules for the conclusion of contracts.

If an apartment building does not have a common metering device, some nuances are possible. Resource supplying organizations can use a PC when making calculations, if it is technically possible to install a meter in the house, but it is not there due to other reasons. If the payment of the KU in a larger amount than is required is not in your interests, in the survey report it is worth mentioning the technical reasons that do not allow the installation of an ODPU. The procedure for identifying technical capabilities is determined and drawn up 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 possibility of installing individual, general (apartment), collective (general house) metering devices, as well as the form of the survey report establishing the presence (absence) of the technical possibility of installing such metering devices and the procedure for filling it out. "

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

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

If the executor of the CU is a management company, it is she who is responsible for payments not made on time to the supplier. Companies providing services cannot put forward 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, settlement with resource supplying organizations is carried out not for each consumer separately, but for the provided volume of water, gas, electricity, 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 defaulters. If it is not possible to obtain the required amount, the management company must repay the obligations.

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

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

In this case, the management company must take measures to influence debtors solely in accordance with the agreement concluded between it and the residents of the house.

In this case, the management company can shift the debts of the owners of residential premises in the house to the agent - the manager who conducts transactions on the settlement account of the owners of the MKD. When a contract is concluded with an economic 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 pay off the debt of this enterprise. All calculations in force with the resource supplying organization must be carried out on certain days of the month specified in the contract. All balances of funds, except for the legal remuneration of the business enterprise, remain on the account. The management company cannot spend them for purposes not specified in the terms of the contract. If the Criminal Code goes bankrupt, debt collection cannot be applied to this account. This scheme acts 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 to form a homeowners' partnership, which will act as the new manager.

The agreement concluded with the agent may provide for the shifting of the management company's debts to the enterprise supplying the 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 debt of the Criminal Code. In court, it is also impossible to shift the obligation to pay debts to the agent.

Debt to resource supplying organizations may cause termination of the contract

Not only the Civil Code of the Russian Federation (clause 1 of Art. 546 together with clause 3 of Art. 523) contains a provision on the right of a resource supplying enterprise to refuse to fulfill an agreement for the supply of services. This is also stated in the Decree of the Government of the Russian Federation of February 14, 2012 No. 124 "On the rules binding upon the conclusion of contracts for the supply of utilities for the purpose of providing utilities."

Regulation No. 124 is a special normative act governing the procedure for concluding, executing and terminating an agreement for the supply of resources between the RNO 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 of the KU has a debt for a certain type of utility resources in an amount exceeding the amount of this service for three settlement months. In addition, proof of the existence of these outstanding obligations is required. Such an argument can be a signed act of reconciliation of mutual settlements or a court decision. But in judicial practice, this document is not considered as unconditional proof of the debt. The act of reconciliation of mutual settlements is a weighty argument if there are other grounds: agreements concluded with resource supplying organizations, acts of transferred water, gas, heat, electricity, invoices for payment, claims correspondence.

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

• Criminal Code, HOA or other specialized community violated the contract, namely, owed payment for three settlement months;
• there is a document confirming the violation: a reconciliation act or a court act.

2. The contract for the supply of resources contains information on the right of counterparties to refuse it unilaterally. The implementation of such an action should not conflict with the terms of clause 30 of Regulation No. 124. Since the clause in question has 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 clause 30, the resource supplying organization can prescribe in the contract a condition on the unilateral termination of obligations. If nothing is said about such a right or the order of refusal is not described in full, as it is implied by paragraph 30 of Rules No. 124, resource supplying organizations have no grounds to terminate contracts.

At the moment, there is practically a unified judicial practice related to the implementation of the RNO unilateral waiver of contracts. If the agreement between the resource supplying organization and the management company (HOA, another group) does not contain conditions for terminating obligations at the initiative of one of the counterparties, it is illegal to refuse to execute the contract. However, according to some courts, the resource supplying organization can also defend its right to terminate the contract in court (clause 2 of article 450 of the Civil Code of the Russian Federation). But in fact, cases with a positive outcome for RSO are practically not encountered.

Let's give an example. To substantiate the notification 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 Rules No. 124. The court stated that the agreement on the provision of resources did indeed contain a condition on the supplier's ability 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 settlement 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 paragraph 30 of Rules No. 124 (resolution of the Fifteenth Arbitration Court of Appeal dated November 29, 2013 No. 15AP-17471/2013 in case No. A53-9033 / 2013). The Criminal Code is also endowed with the right to contact the antimonopoly service.

Expert opinion

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

Kirakosyan S. A.,

candidate of Legal Sciences, Associate Professor of the KubSU branch (Novorossiysk), an independent expert at the Ministry of Justice of Russia on anti-corruption expertise of legal acts, partner of the company "Estok-Consulting"

The Penza OFAS RF issued a judgment of 24.08.2015 in case No. 2-03 / 19-2015, according to which it recognized that the heat supply organization (TSO) acted unlawfully. Upon consideration of the OFAS RF in Penza, it was established that the contracts for the supply of electricity between the TSO and the management company, the HOA did not specify the conditions under which the last resort supplier could refuse to fulfill the agreement. In addition, the amount of debt of some management companies and homeowners associations did not exceed the amount of electricity for three settlement months. However, the organization sent a notice of withdrawal from the agreement to the management companies and the HOA. Such actions were found unlawful, as the TSO abused its powers. This was regarded as a violation of Part 1 of Art. 10 of the Law on Protection of Competition. OFAS for the Rostov Region issued a similar decision of 23.12.2015 in case No. 213/02.

Obligations of the resource supplying organization to terminate the contract unilaterally

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

1. The resource supplying organization is obliged:

• inform users (homeowners) about the debt of the management company, homeowners association or other specialized group for payment of corporate governance;
• tell about the procedure for switching to the conclusion of direct contracts with consumers for the provision of corporate governance, their obligations to pay for utilities directly to the supplier's cash desks or transfer funds through his payment agents;
• invite the owners of residential premises to make a choice in favor of one or another UK or to opt for another 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. Of course, the best option would be to place a written notice on information stands in the MKD (namely, in the entrances). Advertisements of this kind are often duplicated in local newspapers or on the RNO websites.

Note that notifying users of the cancellation of the contract is a prerequisite.

2. RSO should provide services to honest payers immediately until the moment when an agreement is concluded with a new contractor of the corporate governance, or when the owners sign an agreement with the 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 house management does not change to HOA or personal management of the owners, services should be provided to users according to the previous scheme. The basis for this is a contract, which says about the conditions for the provision of communal resources, concluded through conclusive actions. Concrete actions here are the decision of the supplier enterprise to abandon the contract with the CM and switch to signing direct agreements with the CM 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 performer, which are stated in the Rules for providing CG to owners and users of premises in MKD and residential buildings, approved by Decree of the Government of the Russian Federation No. 354 dated 06.05.2011. the management company should not charge a fee for the provision of utility resources during the period of the provision of CG RNO.

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 for a simplified transition to the conclusion of direct contracts with users. Other resource-supplying enterprises associate this with even greater inconvenience in organizing the collection of data on individual readings of the PU, charging, issuing and receiving payments, filing claims and accepting claims. Therefore, even if you edit clause 30 of Regulation No. 124 and specify 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 rendering industry cannot be resolved. It remains to count on positive changes in the current year, according to which users will conclude direct contracts with resource supplying organizations in 2017 according to a legalized scheme. Gas and electricity supply companies have been operating according to such schemes for a long time.

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

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

We read the legislation

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

- produce or acquire a utility resource;

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

- provide utilities to consumers.

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

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

- and under direct management - another organization producing or acquiring communal resources.

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

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

Interpreting legislation

Utility rules extend their effect to the relationship between contractors and consumers of utilities ( p. 1). Nevertheless, due to their p. 8 the terms of the agreement on the purchase of communal resources and wastewater disposal (reception (discharge) of wastewater), concluded with the RNO in order to provide the consumer with communal services, should not contradict the rules themselves and other regulatory legal acts of the Russian Federation. It is worth paying attention to the fact that “should not contradict” in the context of the mentioned norm does not mean “must comply” with them.

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

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

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

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

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

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

- responsibility of the parties to the contract;

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

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 contracts. It should be noted that in the text themselves Of the Rules provision of utilities contains contradictions that do not allow their effect to be extended exclusively to the relationship between contractors and consumers of public services.

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

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

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

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

Nevertheless, we have to admit that in practice, the explanations of the Ministry of Regional Development of the Russian Federation are not always implemented. Both objective and subjective reasons contribute to this. 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 comply with the procedure provided for Rules for the provision of utilities). Subjectivity is manifested in the application of the current legislation by the judicial authorities.

We turn to arbitrators

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

Nevertheless, the position of the arbitrators on the issue under consideration can be traced in the disputes between the RNO and Rospotrebnadzor. Such cases are just the case when a state body (Federal Service for Supervision of Consumer Rights Protection and Human Welfare) can apply to the court for the protection of an indefinite circle of persons (residents of a particular house). This becomes especially relevant in the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court for 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 a utility service provider and a RNO is the fulfillment or non-fulfillment of the obligation to maintain internal engineering networks. Otherwise, RNO is not exempt from the obligation to comply with the requirements Of the Rules for the Provision of Utilities... Doubts arising in practice can be explained primarily by the imperfection of the legislative framework. The solution to the existing problem is seen in the introduction of amendments to the normative legal acts regulating the relationship between contractors and consumers of public services. The publication of fundamentally new acts capable of regulating relations with the North Ossetian Organization is not ruled out.

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

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

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

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

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

Basic concepts

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

This type of company includes organizations that provide:

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

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

Can RSO be considered a 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 the intermediary between the tenants and the RNO. She is responsible for transferring funds to apartment owners to pay for the services of resource companies. UK - acts as a service provider, and RNO, in turn, is a subcontractor.

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

Responsibility of RNO for errors in calculations

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

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

Features of direct cooperation

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

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

Direct settlements with RNO carry a number of positive aspects:

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

There are also negative features:

1. The variability of payment methods for utilities is decreasing. The lion's share of management companies cooperates with all payment systems and you can deposit funds without leaving your home (Internet banking, auto payments, etc.). When settling with RNO, you will have to contact the cashier.
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 RNO directly, that is, without the participation of the management company. This is permissible in the following situations:

1. This form of management was chosen at the general meeting of residents. Relevant 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 responsibilities of a utility service provider.
4. The owner of a private house acts as a resource user.
5. The HOA has debts to the RNO that exceed the average cost of services for the last 3 months.

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

This cooperation has both positive and negative aspects. Pros:

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

The disadvantages include:

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

In the video about direct cooperation with resource supplying organizations

Conclusion

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

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

The provision of residents of apartment buildings is carried out by 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 abusing their activities, the law establishes their special legal status.

What is a resource supplying organization

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

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

Management company or HOA and RSO

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

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

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

UK - utility service provider

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

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

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

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

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

Resolution No. 124

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

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

Sample resource supply agreement with the management company

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

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

Debts of management companies to resource supplying organizations

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

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

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

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

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

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

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

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

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

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

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

The possibility of shifting the debts of the Criminal Code to the resource-supplying organization may be provided for in the 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 debts to the Criminal Code. The court also has no right to oblige the agent to answer for the obligations of the Criminal Code.

Ways to restructure the debt of the management company

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

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

UK is a fraudster

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

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

Direct payments to resource supplying organizations

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

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

The positive aspects of concluding an agreement directly include:

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

The negative ones include:

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

In addition to direct contracts with a resource-supplying organization, there has been a growing tendency recently towards a complete refusal, both from the management company and from the HOA. In many ways, the reason for this was the abuse that was committed by officials of these organizations. In 2018, the right of residents of 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:

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

The cons are expressed:

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

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

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

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

In connection with 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 - direct contracts).

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

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

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

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

Answers to a number of other questions are given.

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

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

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

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

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

Such calculations are regulated by article 155 of the RF LC and the Rules for the provision of utilities to owners and users of premises in apartment buildings and residential buildings, approved by the 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 RNO.

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

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

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

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

- under the direct management of the owners of MKD;

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

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

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

2. Basis and algorithm for the transition to direct calculations

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

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

2.2. Determine the transition date at the meeting.

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

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

Due to the fact that the obligation between the RSO and the Criminal Code (HOA) remains unchanged. This means that the ICD manager is responsible to the RSO for the proper payment of the communal resource supplied to the MKD. Therefore, the courts satisfy the claims of the RNO to recover from the Criminal Code (HOA) the debt for the utility resource minus the amounts received from 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 utilities, according to which it is the contractor who is obliged to calculate the amount of payment for utilities. Therefore, in litigation, the subject of which is the conclusion of resource supply contracts, subject to the decision by the general meeting of owners of premises to make payments for utilities directly to the RNO, 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 premises MKD no later than the 1st day of the month following the calculated one, the details of the RSO.

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

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

Chairman of the Board

HOA "Altair"

krasnoyarsk

Kolesnikov Viktor Alekseevich

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

Basic concepts

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

This type of company includes organizations that provide:

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

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

Can RSO be considered a 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 the intermediary between the tenants and the RNO. She is responsible for transferring funds to apartment owners to pay for the services of resource companies. UK - acts as a service provider, and RNO, in turn, is a subcontractor.

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

Responsibility of RNO for errors in calculations

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

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

Features of direct cooperation

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

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

Direct settlements with RNO carry a number of positive aspects:

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

There are also negative features:

1. The variability of payment methods for utilities is decreasing. The lion's share of management companies cooperates with all payment systems and you can deposit funds without leaving your home (Internet banking, auto payments, etc.). When settling with RNO, you will have to contact the cashier.
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 RNO directly, that is, without the participation of the management company. This is permissible in the following situations:

1. This form of management was chosen at the general meeting of residents. Relevant 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 responsibilities of a utility service provider.
4. The owner of a private house acts as a resource user.
5. The HOA has debts to the RNO that exceed the average cost of services for the last 3 months.

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

This cooperation has both positive and negative aspects. Pros:

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

The disadvantages include:

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

In the video about direct cooperation with resource supplying organizations

Conclusion

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