Signs of the status of a utility service provider. Resource supplying organization - utility service provider

In a provisioning relationship utilities in addition to consumers and suppliers of communal resources, there is a certain contractor.

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

We read the legislation

As follows from Clause 3 of the Rules, legal entities are recognized as executors of utilities, regardless of their organizational and legal form, or individual entrepreneurs meeting the following requirements:

- produce or acquire a utility resource;

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

- provide utilities to consumers.

The literal interpretation of this definition suggests that entity and individual entrepreneurs 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 that produces or acquires communal resources.

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

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

Interpreting legislation

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

Besides, p. 7 establishes the limits of RSO liability under the contract with consumers. So, the RNO is responsible for the mode and quality of supply of cold and hot water, electricity, gas and heat energy, as well as wastewater disposal at the border of networks that are part of the common property of 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 utility resources and water disposal (reception (discharge) of wastewater);

- responsibility of the parties to the contract;

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

The main purpose of the broad interpretation is to prevent violation of the rights of consumers who fully fulfill the obligations established by the legislation of the Russian Federation and agreements. It should be noted that in the text themselves Of the rules provision of utilities contains contradictions that do not allow them to be extended exclusively to the relationship between contractors and consumers of public services.

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

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

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

There is no doubt about the validity of this opinion. The fact is that what rights and responsibilities would not be endowed rules provision of utilities performers, the actual implementation of these rights and obligations directly depends on the RNO. In practice, HOAs and management organizations are just intermediaries between citizens and the RNO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter dated 13.02.2007 No. 2479-RM / 07, the utility service provider has the right to demand the establishment of parity corresponding Rules for the provision of utilities terms of contracts with RNO by agreement of the parties, and in the absence of such an agreement - in court. It seems that the owners who directly build relations with the RNO (with a direct form of management), all the more have the right to demand the fulfillment of the duties of the executor 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. This is facilitated by both objective and subjective reasons. The former include the dependence of the RNO on energy legislation (for example, the procedure for suspending or restricting the supply of electricity, established by the Rules the functioning of retail electricity markets during 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 at all apply for judicial protection and do not ask to impose on the RNO the duties of a utility service provider. They just pay the bills that these organizations give them regularly.

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

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

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

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

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

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

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

Basic concepts

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

TO this type companies include organizations that provide:

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

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

Can RSO be considered a UK

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

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

Responsibility of RSO for errors in calculations

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

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

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

Features of direct cooperation

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

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

Direct settlements with RSO have a number of positive aspects:

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

There are also negative features:

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

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

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

This form of management was chosen at the general meeting of residents. Relevant for houses with not big amount apartments.
The users of the services are the owners of non-residential premises.
When the contract between the Criminal Code and the tenants ended. With the drawing up of a new contract, the management company again assumes the responsibilities of a utility service provider.
The owner of a private house acts as a user of resources.
The HOA has debts to the RNO in excess of average cost 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.

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

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

The disadvantages include:

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

In the video about direct cooperation with resource supplying organizations

Conclusion

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

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

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

What is a resource supplying organization

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

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

Management company or HOA and RSO

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

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

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

UK - utility service provider

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

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

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

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

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

Resolution No. 124

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

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

Sample resource supply agreement with the management company

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

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

Debts of management companies to resource supplying organizations

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

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

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

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

disconnect the debtor from local network;
go to court.

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

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

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

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

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

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

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

Ways to restructure the debt of the management company

Legislation does not provide for ways of restructuring the debt of the Criminal Code to resource-supplying organizations. but complete absence resource supply and bankruptcy of the Criminal Code are 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

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

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

Direct payments to resource supplying organizations

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

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

The positive aspects of concluding an agreement directly include:

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

The negative ones include:

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

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

This attitude also has its pros and cons.

TO positive features can be attributed:

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

The available cons are expressed:

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

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

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

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

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

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

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

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

Answers to a number of other questions are given.

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

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

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

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

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

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

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

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

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

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

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

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

- when the way MKD management not selected or selected, but the events specified in paragraphs 14, 15 of Rules No. 354 did not occur.

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

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

2. Basis and algorithm for the transition to direct calculations

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

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

2.2. Determine the transition date at the meeting.

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

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

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

4. Who issues payment documents?

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

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

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

Chairman of the Board

HOA "Altair"

Krasnoyarsk

Kolesnikov Viktor Alekseevich

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

We read the legislation

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

Produce or acquire a utility resource;

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

Provide utility services to consumers.

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

Managing organizations;

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

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

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

Interpreting legislation

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

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

The rights and obligations of the parties to the contract;

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

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

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

Liability of the parties to the contract;

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

There is no doubt about the validity of this opinion. The fact is that what rights and responsibilities would not be endowed rules provision of utilities performers, the actual implementation of these rights and obligations directly depends on the RNO. In practice, HOAs and management organizations are just intermediaries between citizens and the RNO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter dated 13.02.2007 No.? 2479? RM / 07, the utility service provider has the right to demand the establishment of parity corresponding Rules for the provision of utilities terms of contracts with RNO by agreement of the parties, and in the absence of such an agreement - in court. It seems that the owners who directly build relations with the RNO (with a direct form of management), all the more have the right to demand the fulfillment of the duties of the executor 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. This is facilitated by both objective and subjective reasons. The former include the dependence of the RNO on energy legislation (for example, the procedure for suspending or limiting the supply of electricity, established by the Rules for the functioning of retail electricity markets during the transitional period of reforming the electricity industry, does not correspond to the procedure provided for). Subjectivity is manifested in the application of the current legislation by the judicial authorities.

We turn to arbitrators

Nevertheless, the position of the arbitrators regarding the problem under consideration can be traced in the disputes between the RNO and Rospotrebnadzor. Such cases are just the case when a state body (the Federal Service for Supervision of Consumer Rights Protection and Human Welfare) can apply to the court for the protection of an indefinite circle of persons (residents of a particular house). This becomes especially relevant precisely with the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court on claims of the RNO, which were brought to administrative responsibility for violating the requirements of legislation in the field of consumer protection.

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

Another example that I would like to give is - Resolution of the FAS SZO dated 05.11.2008 No.? A66-2701 / 2008... In it, the court confirmed the validity of bringing the RNO to administrative responsibility for clause 1 of Art. 14.8 Administrative Code of the Russian Federation for violation of the consumer's right to receive reliable information about the service, the contractor. The arbitrators found out that the company supplied thermal energy to apartment buildings through its heating networks and, on its own behalf, issued receipts for payment for the services rendered. Therefore, it was she is a person selling public services to consumers, regardless of whether it is a utility service provider or a resource supplying organization. For application purposes Art. eight, 11 of the Law of the Russian Federation of 07.02.1992 No.? 2300-1 "On Protection of Consumer Rights" it is the RSO who is the executor, therefore, is recognized as the subject of responsibility.

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

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

Any resources that are delivered to your home, namely electricity, water, heat and gas, in accordance with part 4 of Article 154 of the Housing Code of the Russian Federation are called utilities. They are produced and provided by various companies, which will be discussed.

Management Company

First, let's figure out the decoding of incomprehensible abbreviations so that there are no difficulties in the future. MC (or UO) stands for a management company (organization). The resource supplying organization will hereinafter be referred to as RSO.

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

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

The concept of a resource supplying organization

RSO for ordinary consumers is a manufacturer of utilities. Let's take a closer look at their activities. In addition to the above-mentioned utilities: water supply, heat, electricity and gas supplies; The resource supplying organization is also engaged in the following activities:

elimination of rodents and insects;
waste disposal;
lighting of nearby areas and yards;
installation of public TV antennas.

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

Relationship between RSO and UK

After we figured out the abbreviations and what each of the organizations does, let's look at the interaction between the management company, RNO and the owners of residential premises. Let's start with two legal entities. They enter into a bilateral contract for the supply of utilities. The resource supplying organization is responsible for the production and delivery of consumer services. In turn, the managing organization is responsible for collecting money from owners and transferring funds to RNO. Although the scheme is simple to understand, in practice difficulties often arise due to the lack of transparency in the activities of housing and communal services.

Relationship between the MA and homeowners

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

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

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

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

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

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

Relationship between RNO and homeowners

It may seem that there is no interaction between them and everything is extremely simple, but this is not so. If there is a managing organization, the resource supplying organization and the owners are not connected in any way. On rare occasions, the RNO can be seen as a utility service provider. This happens when the management of an apartment building is carried out in these ways:

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

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

no expenses for the maintenance of the MA;
owners will not suffer from neighbors who do not pay their bills on time;

The main disadvantages include:

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

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

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

Obligation of the MA under direct contracts

UK continues to be responsible for providing engineering internal building systems to smooth operation... They also accept applications from owners of residential premises for work of inadequate quality. The company provides interaction between RNO and property owners.

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

Conclusion

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

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

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

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

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

We read the legislation

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

Produce or acquire a utility resource;

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

Provide utility services to consumers.

Managing organizations;

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

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

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

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

Interpreting legislation

The rights and obligations of the parties to the contract;

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

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

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

Liability of the parties to the contract;

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

The main purpose of the broad interpretation is to prevent violation of the rights of consumers who fully fulfill the obligations established by the legislation of the Russian Federation and agreements. It should be noted that in the text themselves Of the rulesprovision of utilities contains contradictions that do not allow them to be extended exclusively to the relationship between contractors and consumers of public services.

There is no doubt about the validity of this opinion. The fact is that what rights and responsibilities would not be endowed rulesprovision of utilities performers, the actual implementation of these rights and obligations directly depends on the RNO. In practice, HOAs and management organizations are just intermediaries between citizens and the RNO. And, as the Ministry of Regional Development of the Russian Federation reasonably notes in Letter dated 13.02.2007 No. 2479-RM / 07, the utility service provider has the right to demand the establishment of parity corresponding Rules for the provision of utilities terms of contracts with RNO by agreement of the parties, and in the absence of such an agreement - in court. It seems that the owners who directly build relations with the RNO (with a direct form of management), all the more have the right to demand the fulfillment of the duties of the executor 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. This is facilitated by both objective and subjective reasons. The former include the dependence of the RNO on energy legislation (for example, the procedure for suspending or limiting the supply of electricity, established by the Rules for the functioning of retail electricity markets during the transitional period of reforming the electricity industry, does not correspond to the procedure provided for). Subjectivity is manifested in the application of the current legislation by the judicial authorities.

We turn to arbitrators

Nevertheless, the position of the arbitrators regarding the problem under consideration can be traced in the disputes between the RNO and Rospotrebnadzor. Such cases are just the case when a state body (the Federal Service for Supervision of Consumer Rights Protection and Human Welfare) can apply to the court for the protection of an indefinite circle of persons (residents of a particular house). This becomes especially relevant precisely with the direct form of house management, when the owners have no other representative. In addition, Rospotrebnadzor often acts as a defendant in court on claims of the RNO, which were brought to administrative responsibility for violating the requirements of legislation in the field of consumer protection.

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

Another example that I would like to give is - Resolution of the FAS SZO dated 05.11.2008 No. A66-2701 / 2008... In it, the court confirmed the validity of bringing the RNO to administrative responsibility for clause 1 of Art. 14.8 Administrative Code of the Russian Federation for violation of the consumer's right to receive reliable information about the service, the contractor. The arbitrators found out that the company supplied thermal energy to apartment buildings through its heating networks and, on its own behalf, issued receipts for payment for the services rendered. Therefore, it was she is a person selling public services to consumers, regardless of whether it is a utility service provider or a resource supplying organization. For application purposes Art. eight, 11 of the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On Protection of Consumer Rights" it is the RSO who is the executor, therefore, is recognized as the subject of responsibility.

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

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 peculiarities of the work of managing 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.

The city's water utility directs water through pipes to homes. Accordingly, when we open a tap in our house, we use hot or cold water.
For heating in autumn-winter period several enterprises are in charge. If we consider the houses in which the individual support heat, 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.
Electricity is generated by hydroelectric power plants. It all depends on how densely populated the city is.
The supply of the most important resource - gas - is the responsibility of the city gas service. But since a significant part of the population uses electric stoves, this category of people does not need blue fuel.

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

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;
directly to the owners of real estate.

In the latter case, when one owner acts 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 method of management;
the previous method of leadership has ceased to operate, and the new (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 the executor of the corporate governance and the contractor of the users. 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, the number of apartments in which is less than 16.
If users are owners of non-residential premises in MKD.
If the HOA or MC have debts to the RSO, the amount of which will exceed the cost of services for three billing periods.
In the period of time when the contract between the contractor of the CU and the consumers will cease 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 the maintenance of 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, the following can be noted:

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 Communal Services.

How the management company interacts 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 cooperation between the Criminal Code and the Republic of North Ossetia, 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, of course, is at risk.

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

Contracts concluded with resource supplying organizations of the management company are different. Enterprises provide each of 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 deliveries, issues related to payment and non-fulfillment of financial obligations.

The contract must contain information on the amount of energy supplied to the house per day (on average). UK employees always have the opportunity to take measurements. In the event of significant differences in the indicators from those indicated in the agreement, 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, indicates 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 of it.

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 railings, paint the walls in the stairwell, 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. The issue of payment is also important. labor activity 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 the management company

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 relevant documentation is attached to the offer (application).

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

There are certain rules that must be followed when concluding agreements between the Criminal Code, HOA or housing cooperative with a resource supplying enterprise. 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 RNO 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, 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 ahead of time

The minutes of the general meeting, the MKD management agreement must contain the dates of the commencement 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 pointing out when she needs to start performing her 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 MKD 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 the activity. 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 in advance of the days of acceptance / transfer of MKD control, 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 formed its own opinion on this issue, however, not every resource supplying organization takes it into account. The RF Armed Forces noted that when apartment buildings are removed from the management of the company, 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 begun 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 common 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 are asked to pay for the delta, since during the period of 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 to what extent the resources were used.

Suppose the act is 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 with the new management company from August 1.

Timely send documents to the RSO 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 the provision of corporate governance and settlement for them, which was in force before it was decided to choose a new managing organization (part 18 of article 12 Federal law No. 176-FZ).

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. 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 disputed, 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 score. 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 CU. 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 is terminated 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 contract for the supply of services. Does the agreement permit the use of a multiplying factor? Have you signed an additional agreement? If you answered no in 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 coefficient 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 utility 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 a 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. Calculations 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 buildings 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 standards 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 about 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 there is no general metering device in an apartment building, some nuances are possible. Resource supplying organizations can use PCs 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 KU in a larger amount than is required is not in your interests, it is worth mentioning in the survey report technical reasons that do not allow the installation of ODU. Identification procedure technical capability 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 criteria for the presence (absence) of the technical possibility of installing individual, general (apartment), collective (common house) metering devices, as well as the form of the survey report for establishing the presence (absence ) the technical feasibility of installing such metering devices and the procedure for filling it out. "

This is the provision of subparagraph "e" of 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 the 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 for 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 the owners of the 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 the 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 leftovers financial resources, in addition to the legal remuneration of the business entity, remain on the account. The management company cannot spend them for purposes not specified in the terms of the contract. If the Criminal Code becomes bankrupt, collection of debts 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' association, which will act as the new manager.

The agreement concluded with the agent may provide for the shifting of debts of the management company 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.

Debts 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 company 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 communal resources for the provision of communal services."

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 Art. 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 CU is in arrears for certain type utilities in an amount exceeding the amount of this service for three billing months. In addition, proof of the existence of these unliquidated obligations is required. Such an argument may be a signed act of reconciliation of mutual settlements or a court decision. But in judicial practice, this document is not considered as an unconditional proof of the existence of a 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: an act of reconciliation or an act of the court.

2. The contract for the supply of resources contains information on the right of counterparties to withdraw from it in 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 refusal procedure is not described in full, as it is implied by clause 30 of Rules No. 124, resource supplying organizations have no grounds to terminate the contracts.

V this 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. In order 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 indeed contains a condition on the supplier's ability to terminate it and stop the supply of heat energy 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 when the actions of the TCO were qualified as abuse of position

Kirakosyan S. A.,

Candidate of Law, 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, in accordance with which it recognized that the heat supply organization (TSO) acted unlawfully. When considering the OFAS RF in the city of Penza, it was established that the contracts for the supply of electricity between the TSO and the management company, the HOA did not spell out 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 on Rostov region made a similar decision of 23.12.2015 in case no. 213/02.

Obligations of the resource supplying organization to terminate the contract unilaterally

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 MC, HOA or other specialized group for payment of CU;
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 management company or to choose another method of managing the house (homeowners association 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 will be placing 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 the contract, which says about the conditions for the provision of communal resources, concluded by means of conclusive actions. Significant 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 apartment buildings and residential buildings, approved by the Decree of the Government of the Russian Federation of 05/06/2011 No. 354. That is the management company should not charge a fee for the provision of communal resources during the period of provision of 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 accepting 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.

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