The practical application of the model of direct payments for utility services between the owners of premises and the RSO reveals certain disadvantages, primarily for managers of apartment buildings, if the RSO is not ready to provide comprehensive information about consumer payments.
According to Part 6.3, 7.1 Art. 155 of the Housing Code of the Russian Federation, on the basis of a decision of the general meeting of HOA members (owners of premises in an apartment building), the owners (tenants) of premises in an apartment building can pay for all or some of the utilities of the RSO. At the same time, payment for utility services to such organizations is recognized as the fulfillment by the owners (tenants) of premises in the apartment building of their obligations to pay for utility services to the HOA (MC), which is responsible to them for the provision of utility services of proper quality. These provisions were introduced into the RF Housing Code in 2011; an analysis of the practice of their application allows us to identify the main problems.
Direct payments ≠ direct contracts
In the Decision of 05.05.2014 No. AKPI14-197, the Supreme Court came to the conclusion that the establishment by a decision of the general meeting of the procedure for paying fees for utility services means the establishment of a new method of fulfilling obligations by consumers of utility services to the contractor represented by the management company, partnership or cooperative under an agreement containing provisions about the provision of such services.
In other words, the so-called direct payments are only a special way of fulfilling the obligation of the owners of premises to the provider of utility services, while the obligation itself remains unchanged. Therefore, obviously, the decision by the owners of the premises to pay for consumed utility resources directly to RSO does not relieve the management company, as the provider of utility services, of the obligation to conclude resource supply agreements (Determination of the Armed Forces of the Russian Federation dated July 6, 2015 in case No. 310-KG14-8259, A68-1080/ 2014). That is why the obligation between the RSO and the management company (HOA) also remains unchanged. This means that the manager of the apartment building is responsible to the RSO for proper payment for the utility resource supplied to the apartment building. If the court refuses to collect the debt from the manager for the resource supplied to the house, this will mean recognizing the owners of the premises as subscribers of the RSO, which in this case acts in relation to citizens as a service provider, which is generally impossible when choosing a management method in the form of a management company, Homeowners' association, residential complex (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 No. 5614/13). Therefore, the courts satisfy the claims of the RSO for the collection of debt from the management company (HOA) for a utility resource minus the amounts received from consumers (decrees of the Supreme Court of the Russian Federation dated December 25, 2014 No. 308-ES14-7187, dated August 29, 2014 No. 303-ES14-525, resolutions AS PO dated January 28, 2015 No. F06-19378/2013, AS UO dated July 22, 2015 No. F09-4294/15, AS TsO dated May 22, 2015 No. F10-786/2015).
Thus, this payment option does not allow achieving the goal of withdrawing from the provision of utility services. On the contrary, removing cash flows from the authority of the MKD manager can lead to unexpected consequences.
Who issues payment documents?
Taking into account the fact that the manager of an apartment building retains the status of a provider of utility services, he is subject to paragraphs.
“d” clause 31 of the Rules for the provision of utility services, according to which it is the contractor who is obliged to calculate the amount of payment for utility services. Therefore, in legal proceedings, the subject of which is the conclusion of resource supply agreements, subject to the adoption by the general meeting of owners of the premises of a decision to pay for utilities directly to the RSO, the court accepts approximately the following wording of the terms of the agreement: the provider of utilities indicates in the payment documents submitted to the owners, tenants of the premises in MKD no later than the 1st day of the month following the settlement month, RSO details (see Resolution of the Second Arbitration Court of Appeal dated July 23, 2015 in case No. A17-7605/2014). In a situation where simultaneously the management company and the RSO issue payment documents for utility bills, the court will be on the side of the management company. In particular, the AS ZSO supported the state housing supervision body, which issued the RSO an order to stop issuing payment documents to the owners of the premises, since the executor of utilities is the Criminal Code (Resolution dated July 20, 2015 No. F04-18454/2015[1]). The arbitrators believe that if we recognize the right of RSO to issue bills to the owners of premises for payment of utilities consumed in residential premises, this will mean that the owners of the premises are subscribers of RSO, which is only possible with direct management of the house (Resolution dated June 19, 2015 No. F04- 19819/2015).
However, there is a legitimate way to transfer to RSO the right to charge fees and issue payment documents - to conclude an agency agreement with it or to include a corresponding condition in the resource supply agreement (RSO will actually perform the functions of a payment and settlement center), and it is important that the manager of the apartment building does not lose the status of the executor utilities (Resolution of AS UO dated February 10, 2015 No. F09-9088/14).
Special opinion
A completely special view of the problem presented was formed in the Far Eastern District. Firstly, the court found it completely legal for the situation in which, by decision of the general meeting, the owners of the premises paid payments (including for utilities to the ODN) directly to the RSO, and the latter, acting on the basis of the decision of the general meeting and the resource supply agreement, kept personal accounts, issued payment documents to the owners of the premises. Based on these introductory information, the court declared illegal the order of the Criminal Code to issue receipts for payment of utility services (Resolution No. F03-2379/2015 dated June 25, 2015). Secondly, the court considered that, subject to the general meeting making a decision to switch to direct payments, the RSO should collect debts for utilities from the owners of the premises, and not from the manager of the apartment building (Resolution dated 04/06/2015 No. F03-950/2015). It appears that this approach runs counter to the provisions of housing legislation.
Legislative regulation
The content of payment documents and the rules for calculating payments are regulated by:
- Government Decree No. 354;
- By Order of the Ministry of Construction No. 43;
- By the decision of the Supreme Court of the Russian Federation on Resolution No. 354;
- Housing Code;
- local regulations.
Resolution No. 354 describes the rules for calculating fees for housing and communal services , providing specific formulas by which the payment amount is calculated for each item on the receipt.
The Housing Code obliges management organizations, regional waste removal operators, and resource supply companies to generate payment documents and send them to the payers’ place of residence. Local regulations determine, in accordance with federal standards, the tariffs and standards by which the amounts of payments in receipts are calculated.
Contents of the receipt
Order of the Ministry of Construction No. 43 was signed in January 2021 to replace the expired Order of the Ministry of Regional Development No. 454. This document contains a standard recommended form of receipt for housing and communal services.
According to this order, the text of the receipt must consist of the following sections:
- information about the owner of the premises;
- information about the payment collector (MC or resource supply company);
- information about metering devices;
- payment calculation;
- reference information;
- information about the recalculations made.
Information about the owner includes his full name, personal account number, as well as the address and area of the apartment and the number of persons registered in it. Information about the management company includes its full name, legal address, contact details and bank details.
Information about meters includes the name of the resource being measured (water, electricity, etc.) and the difference in meter readings for the current and past periods.
The “Reference Information” section contains the values of consumption standards in the region, the values of current tariffs, the method of calculating payment (by tariff or standard), as well as current instrument readings. This data allows the payer to check the correctness of the charges given in the “Payment Calculation” section independently.
Information about recalculations includes the amount added or subtracted from the main payment in the event of incorrect accruals last month , the owner’s departure from the residential premises and other circumstances.
In some cases, the receipt also contains the amount of payment, taking into account installments, if a corresponding agreement has been signed between the management company and the payer.
Resolution of the RF Armed Forces
In May 2015, the Supreme Court of the Russian Federation considered the claim to invalidate paragraph. 2 of paragraph 40 of Resolution No. 354. This paragraph establishes a ban on dividing payments for heating into 2 components:
- apartment heating fee;
- share of the payment for heating common premises (entrances, basements, etc.).
The plaintiffs’ argument was the fact that residents have to pay for heating of common premises in equal shares, regardless of the distance of their apartments from such premises, and the main requirement was to be given the opportunity to pay for heating of personal apartments separately and use this service at will.
The Supreme Court refused to recognize paragraph. 2 clause 40 of Resolution No. 354 is invalid in Decision No. AKPI15-198.
The Supreme Court reasons its decision by saying that the ban on splitting heating bills is related to the need to maintain the thermal balance of the entire house, and turning off heating in individual apartments will lead to cooling of neighboring rooms and disruption of the normal functioning of heat-conducting communications.
Utility fees on ODN
According to parts 6.3 and 7.1 of Art.
155 of the Housing Code of the Russian Federation as amended, in force until June 30, 2015, by decision of the general meeting it was possible to change the procedure for paying for all or some utilities, with the exception of utilities consumed when using common property in apartment buildings. Therefore, the RSO was not allowed to collect payments for utility services on the ODN (Resolution of the AS MO dated March 17, 2015 No. F05-841/2015, FAS ZSO dated June 24, 2015 No. F04-20076/2015). The corresponding provisions are also contained in the by-laws - Rules for concluding resource supply agreements[2], Requirements for payments for utility resources[3]. Starting from 06/30/2015, references to the special procedure for paying utility bills to one-way street were removed from the above norms. It seems that this change is due to the transformation of the payment for utilities: the payment for utility services for one-room service is excluded from it and its amounts should be included in the payment for the maintenance of residential premises. However, this amendment will apply only from 04/01/2016, while parts 6.3, 7.1 of Art. 155 of the RF Housing Code in the new edition is already in force.
Giving and receipt for the apartment
“Zhirovka” is an outdated word and in general means an invoice for payment for any services, goods or interest on a deposit. In the Soviet Union, the term “zhirka” was used to mean a bill to residents for utilities, but now this term is almost never used and has been replaced by the word “receipt”.
In order to collect fees for housing and communal services and the maintenance of the house, owners and tenants of residential premises receive receipts (zhirki), the official name of which is payment documents. In total, residents receive seven main receipts each reporting period for the following services:
- garbage removal;
- cold, hot water supply and wastewater disposal;
- repair and maintenance of common property;
- electricity supply;
- heating;
- gas supply;
- major renovation.
In most cases, receipts for repairs and maintenance of the house, cold and hot water supply, as well as for heating are combined into one A4 document, on which three different personal accounts are indicated, then there are five receipts in total.
Residents of houses managed by housing associations may also receive additional receipts for payment of HOA membership fees for additional services.
The purposes of generating receipts in the accounting department of house management are:
- providing residents with reports on the procedure for accruals;
- collecting regular payments from residents;
- compliance with housing legislation.
Payment documents in paper form allow people who do not have access to the Internet and a bank account to pay for utilities, and paid receipts stamped by the management company or credit institution will help confirm a previously made payment in the event of failures in the electronic database of the management company.
