New rules for paying for major repairs in an apartment building

The original article was taken from the website Clerk.ru

Currently, according to the most conservative estimates, a third of apartment buildings (MKD) in the Russian Federation are worn out and require major repairs.

Major repairs of an apartment building - carrying out work to eliminate malfunctions of worn-out structural elements of the common property of the owners of premises in an apartment building, including their restoration or replacement, in order to improve the operational characteristics of the common property in an apartment building.

Before the entry into force of the Federal Law of the Russian Federation of December 25, 2012 No. 271-FZ “On amendments to the Housing Code of the Russian Federation and certain legislative acts of the Russian Federation and the recognition as invalid of certain provisions of legislative acts of the Russian Federation” (hereinafter referred to as Law No. 271-FZ), major repairs helped implement the housing and communal services reform fund. Now the fund will only sponsor the relocation of citizens from dilapidated and dilapidated housing. After Law No. 271-FZ comes into force, owners of living space in apartment buildings will pay for major repairs. Payments for major repairs are mandatory. The monthly fee in each region is set separately and will vary from 5 to 7 rubles per square meter.

By 2014, local governments are required to create a capital repair fund and appoint a regional operator who will repair the housing stock and promptly publish information on the condition of the houses being repaired on the Internet.

At first glance, everything is very clear, moreover, in some regions, even before the adoption of this law, owners paid for major repairs of residential buildings, but around this document there are a lot of speculations and rumors about how this money will be collected and spent. Next, we will consider the pros and cons of Law No. 271-FZ, its innovations, and how this will affect the wallets of ordinary citizens.

The new law, in fact, did not introduce a new norm into civil law, since the Civil Code of the Russian Federation (Article 210) and the Housing Code of the Russian Federation (Clause 1, Article 158) clearly states: responsibility for the maintenance of owned housing lies with its owners. In other words, a person who has purchased, privatized or otherwise acquired ownership of an apartment in an apartment building receives not only the rights, but also the responsibilities for maintaining the housing in proper condition (repairing the roof, facade, foundation, etc.).

Law No. 271-FZ, recognizing the payment for major repairs as mandatory for all owners, is aimed at creating a clear mechanism that will allow major repairs of the entire housing stock to be carried out as planned.

According to Rosstat, at the end of 2011 in the Russian Federation there were 20.5 million square meters of emergency housing, as well as almost 80 million of “dilapidated” housing. The share of such dwellings in the total housing stock is 3%. According to unofficial data, approximately the same number are actually emergency, but are not recognized as such, because Local budgets simply do not have the funds to resettle residents from such houses. The amount required to bring the housing stock into proper condition is unaffordable for the budget. It makes sense that owners will fulfill their statutory duty to maintain their property.

But, given the unpleasant pattern when money disappears or is used for other purposes, citizens need guarantees that these funds will not be stolen and will be used for the purposes for which they were collected. Law No. 271-FZ solves this problem as follows:

Option 1: by the end of 2013, the regions of the Russian Federation must create a capital repair fund and establish a state enterprise - a regional operator. The regional operator will carry out major repairs using funds that will go to the fund according to a plan that will include every apartment building in a constituent entity of the Russian Federation. Local government bodies will compile such lists. The registers will be publicly available, and every citizen will be able to monitor the progress of the repair queue. Each region will have its own fee for residents, but the federal and regional budgets will co-finance capital repairs.

This fundraising option actually contradicts the Civil Code of the Russian Federation and the Constitution of the Russian Federation. As noted above, the owner bears the burden of maintaining his own property, but not that of others. As a general rule, officials allow the funds collected from one house to be used for major repairs of another, according to the approved schedule. One can only guess how the queue will be formed, and who will receive assistance first, and whose house will be repaired in 10 years;

Option 2: The HOA has the right to open its own special account to which the owners will transfer contributions for capital repairs in order to form a capital repair fund. In this case, funds from such an account can only be used for major repairs and for nothing else.

If the Management Company arbitrarily increases the amount of the contribution for major repairs, the owners can go to court to protect their interests.

Let's consider an example: The decision of the Salavat City Court of the Republic of Bashkortostan.

From the case materials: Plaintiff I.A.P. filed a claim against Zhilkomzakazchik LLC, motivating her demands as follows: Maintenance of the house in which she is the owner of the apartment is carried out by the management organization Zhilkomzakazchik LLC (UK).

Despite the fact that the general meeting of homeowners did not make a decision to carry out major repairs of the house, the amount of contributions was not established, and there were no proposals from the management company on the timing of major repairs, the management company charges a fee for major repairs of the house.

The plaintiff repeatedly appealed to the management company with a request to stop accrual under this article, however, in violation of the requirements of Art. 44 and 158 of the Housing Code of the Russian Federation and in the absence of any other decision of the owners of residential premises located in house No., the Criminal Code continued to charge and withhold fees under the article “major repairs” for residents of the specified house.

The plaintiff asks to recognize the actions of the Management Company in charging fees for major repairs as illegal and to oblige the Management Company to stop charging under this article and to pay the plaintiff in cash or by transfer to a bank account the overpaid amounts for major repairs.

The court, having listened to the participants in the process and examined the case materials, considers the statement of claim I.A.P. subject to partial satisfaction on the following grounds:

Making a decision on the repair of common property of homeowners in an apartment building is referred by Article 44 of the Housing Code of the Russian Federation to the competence of the general meeting of homeowners.

As established by the court, the plaintiff entered into an agreement for the management of an apartment building with the management company, under the terms of which the management organization undertakes to provide a range of works and services for the management of an apartment building, including the provision of services and work on the proper maintenance and repair of common property, the provision of utilities to the owner and its users premises for persons. Clause 4.9 of the Management Agreement provides for an indication in the payment document issued by the Managing Organization as part of the accrued payment for residential premises of the fee for major repairs of the common property of the owners of residential premises in an apartment building, subject to the adoption at a general meeting of the owners of premises in an apartment building of a decision to carry out major repairs of the common property of the owners in accordance with Art. 44 and 158 Housing Code of the Russian Federation. According to clause 4.18 of the Management Agreement, major repairs of common property in an apartment building are carried out at the expense of the owner on the basis of an additional agreement to the agreement, prepared on the basis of a decision of the general meeting of premises owners.

The defendant did not provide evidence that the owners of the premises of the apartment building (address) made a decision at the general meeting on the timing of the major repairs of the apartment building and on payment of the costs of the major repairs. In violation of the terms of clause 4.18 of the Management Agreement, an additional agreement to carry out major repairs was not concluded.

The roof repairs carried out do not provide grounds for collecting these funds from homeowners through monthly collection of funds, since there is no evidence of approval at the general meeting of owners of the estimate and payment procedure for this work. Thus, the defendant violated the provisions of Part 2 of Art. 158 of the Housing Code of the Russian Federation, the defendant had no grounds for collecting fees from the owners of residential premises in an apartment building for major repairs.

The minutes of the general meeting of house owners confirmed the establishment of the amount of fees for the maintenance and repair of residential premises, which includes fees for services and work on managing apartment buildings, maintenance, current and major repairs of common property. However, from the receipts presented by the plaintiff and the extract from the personal account presented by the defendant, it follows that along with the accrual of fees for the maintenance of housing, the plaintiff was charged for major repairs on a separate line in the amount of N rubles, which contradicts the decision of the general meeting presented by the defendant.

Under such circumstances, the plaintiff’s demands regarding the illegality of the defendant’s establishment of fees for major repairs to the plaintiff and the recalculation of fees should be recognized as justified, which should be satisfied within the limits of the plaintiffs’ demand.

Conclusion: the second option is preferable. First of all, major repairs are not tied to the plan established by officials, therefore, it can be done earlier than in the queue. In addition, the owners themselves set the amount of monthly contributions (the amount of the monthly contribution for capital repairs should not be less than the minimum contribution for capital repairs established by the regulatory legal act of the constituent entity of the Russian Federation). Repair work is carried out by the management company or any other organization at the discretion of the owners. The bank will transfer the money to the contractor only after the owner of the special account submits a work acceptance certificate signed by representatives of the owners and local authorities.

Important: in accordance with Art. 175 of the Housing Code of the Russian Federation, the owner of a special account can be a homeowners association that manages apartment buildings and created by the owners of premises in one apartment building or several apartment buildings, the number of apartments in which totals no more than thirty, if these houses are located on land plots that, in accordance with documents contained in the state real estate cadastre have a common border, and, within which there are networks of engineering and technical support, other infrastructure elements that are intended for joint use by the owners of premises in these houses.

Thus, if the powers of the HOA go beyond the scope of Art. 175 of the Housing Code of the Russian Federation, then it must open accounts with a regional operator, or be split into separate HOAs.

If the owners of an apartment building have not decided before 2014 how to raise funds for major repairs of common property, they “by default” will go to the regional fund. One way or another, major repairs cannot be avoided.

Moreover, in accordance with Art. 165 of the Housing Code of the Russian Federation, the contribution for major repairs is a mandatory payment, and for late payment a penalty of 1/300 of the refinancing rate of the Central Bank is provided. The owners' decision to refuse payment will be illegal. Money can also be collected from defaulters through legal action.

The decision to carry out major repairs of common property in an apartment building is made at a general meeting of premises owners. Owners at any time have the right to decide to carry out major repairs of common property in an apartment building at the suggestion of a person managing the house or providing services and (or) performing work on the maintenance and repair of common property in an apartment building, a regional operator, or on their own initiative.

The question arises: What to do if the time has come to make repairs, but there are not enough funds?

Article 169. Contributions for major repairs of common property in an apartment building

[Housing Code] [Title IX] [Chapter 15]
. Owners of premises in an apartment building are required to pay monthly contributions for major repairs of common property in an apartment building, with the exception of cases provided for in Part 2 of this article, Part 8 of Article 170 and Part 5 of Article 181 of this Code, in the amount established in accordance with Part 8.1 of the article 156 of this Code, or, if the corresponding decision is made by the general meeting of owners of premises in an apartment building, in a larger amount.

. Contributions for major repairs are not paid by the owners of premises in an apartment building, recognized in accordance with the procedure established by the Government of the Russian Federation as unsafe and subject to demolition, as well as in the event that an executive body of state power or a local government body makes decisions to withdraw for state or municipal needs the land plot on which this apartment building is located, and about the seizure of each residential premises in this apartment building, with the exception of residential premises owned by the Russian Federation, a constituent entity of the Russian Federation or a municipal entity. Owners of premises in an apartment building are exempt from the obligation to pay contributions for major repairs starting from the month following the month in which the decision to withdraw such a land plot was made.

2.1. The law of a constituent entity of the Russian Federation may provide for the provision of compensation for the costs of paying a contribution for major repairs, calculated based on the minimum amount of the contribution for major repairs per one square meter of total living space per month, established by a regulatory legal act of a constituent entity of the Russian Federation, and the size of the regional standard of regulatory area of residential premises used to calculate subsidies, single living non-working owners of residential premises who have reached the age of seventy years - in the amount of fifty percent, eighty years - in the amount of one hundred percent, as well as those living as part of a family consisting only of non-working citizens living together of retirement age and (or) non-working disabled people of groups I and (or) II, owners of residential premises who have reached the age of seventy years - in the amount of fifty percent, eighty years - in the amount of one hundred percent.

. The obligation to pay contributions for major repairs arises for the owners of premises in an apartment building after the expiration of the period established by the law of the constituent entity of the Russian Federation, which is no less than three and no more than eight calendar months, starting from the month following the month in which the approved regional program was officially published capital repairs, which includes this apartment building, with the exception of the case established by part 5.1 of Article 170 of this Code.

. Income from the transfer for use of common property in an apartment building, funds from a homeowners' association, housing cooperative, including income from the economic activities of a homeowners' association, housing cooperative, may be directed by decision of the owners of premises in an apartment building, by the decision of members of the homeowners' association, decision of the members of the housing cooperative, adopted in accordance with this Code, the charter of the homeowners’ association, the charter of the housing cooperative, to form a capital repair fund to fulfill the obligation of the owners of premises in an apartment building to pay contributions for major repairs and (or) to form part of the capital fund repairs in excess of that formed on the basis of the established minimum contribution for major repairs, which can be used to finance any services and (or) major repairs of common property in an apartment building.