Agreement for the provision of services for the maintenance and repair of common property of an apartment building

• Agreement for the provision of services for the maintenance and repair of common property of an apartment building: essence
• Nuances to consider
• Procedure for signing and entry into force

In Russia, a practice has developed in which there is no legal regulation and difficult judicial practice has developed between homeowners and management companies. Therefore, the only way to improve relations is to conclude an agreement for the provision of services for the maintenance and repair of the common property of an apartment building. In order to draw up an agreement for the provision of services for the maintenance and repair of the common property of an apartment building in Moscow, contact the specialists of our portal. At an affordable price, they will quickly help you prepare a document.

Agreement for the provision of services for the maintenance and repair of common property of an apartment building: essence

Relations between the owners and the management company can be regulated by one main agreement, several additional ones, acts of acceptance of work (services) and other regulatory documents.

The legislator provided for the conclusion of an agreement for the provision of services for the maintenance and performance of repairs to the common property of an apartment building in Art. 164 Housing Code of the Russian Federation. This document does not have a clearly established form or standard form, but there are points that are recommended for mandatory execution. Decree of the Government of the Russian Federation No. 290 regulates the minimum list of services that a company must provide when servicing an apartment building. Main sections of the agreement:

• List of paid services provided;
• Price regulation for these services;
• The procedure for calculations;
• Rights and obligations of each party;
• Liability for non-compliance with the contract;
• Rules for resolving arising disputes.

Additionally, in the contract for the provision of services for the maintenance and repair of the common property of an apartment building, in accordance with the same Government Decree, it is necessary to include:

1. Providing residents with information.
2. The order of interaction between both parties.
3. Actions of emergency and repair services.
4. Work performed for the proper maintenance of load-bearing and non-load-bearing structures of buildings.
5. Work necessary to maintain the proper condition of equipment and systems.
6. Provision of services for the maintenance of other common property (garbage chutes, gas equipment, sewer hatches, container platforms, fire hydrants, storm sewers, etc.) (Resolution of the Government of the Russian Federation dated 04/03/2013 N 290)

IMPORTANT: in addition to emergency and repair work in the building itself, separate items should include the provision of services for the maintenance and cleaning of the local area.

State Housing and Construction Supervision Service of the Irkutsk Region

09.03.2016

How is the interaction between the management company and the homeowners or real estate association carried out? This issue is constantly raised and discussed by management companies and homeowners associations.

According to housing legislation, one of the parties to the management agreement is the management company. The second party to the management agreement can be not only the owners of premises in the apartment building, but also the HOA, TSN or housing cooperative. In other words, the partnership created in the house has the freedom to choose: manage the apartment building independently, enter into a service agreement with a contractor, or enter into a management agreement with the management company , handing over the reins to it.

Method of managing a house - partnership

Owners must choose how to manage their apartment building . An apartment building can be managed by a management company, homeowners' association, TSN, housing cooperative, or it can be directly managed (Part 2 of Article 161 of the Housing Code of the Russian Federation).

Essentially, MKD management consists of:

• provision of public services;
• performing work and providing services for the maintenance and repair of common property;
• use of common property - provision for use or lease to third parties on the basis of a decision of the general meeting of owners (Part 3-3.1 of Article 44 of the Housing Code of the Russian Federation).

All funds collected from the owners of the premises must go exclusively to the purposes indicated above.

In accordance with Part 2 of Article 161 of the Housing Code of the Russian Federation, owners of premises in an apartment building cannot simultaneously choose 2 management methods in one apartment building. But there is one nuance here. In the same part 2 of Article 162 of the Housing Code of the Russian Federation there is a wording that allows, having de jure chosen one control method, de facto simultaneously implement two methods of managing MKD.

According to the content of this part of the article, under the management agreement, the management company, on the instructions of the other party, during the period specified in the document, undertakes to perform work and provide services for the management of apartment buildings, maintenance and routine repairs of common property in the house, and the provision of utilities. At the same time, the other party to the agreement can be not only the owners of the premises in the apartment building, but also the governing body of the homeowners’ association .

Thus, the owners, having chosen at the general meeting the method of managing their home by the HOA, can, through this governing body, enter into an agreement with the management company. At the same time, there will be no violation of the law.

It is important to know and remember that the apartment management agreement concluded between the HOA and the management company should not be confused with the house maintenance agreement concluded between the same HOA and the management company. Let's take a closer look at both knocking.

Management agreement between the HOA and the management company

In this case, the HOA completely transfers the management functions of the management company, along with the responsibility for maintenance and routine repairs of the common property of the apartment building , and the provision of utilities.

As a result, relationships arise between the owners and the management company. Although formally the owners of premises in apartment buildings are not a party to the agreement. But the owners place demands on the quality of services from the management company, since the management agreement establishes their rights and obligations.

With such interaction between the HOA:

• does not collect funds from owners for the management of apartment buildings;
• does not manage the funds collected from the owners;
• the management bodies of the partnership are actually inactive, since all management functions of the MKD are entrusted to the management company;
• the board and chairman of the partnership perform only the functions of monitoring the actions of the management company and have the right to terminate the management agreement;
• payment for the work of the board and chairman of the partnership can be carried out on the basis of a decision of the general meeting of members of the HOA . But since they are not employees of the management company, this condition must be specified in the management agreement;
• The validity period of this agreement is not defined in housing legislation, therefore it can be concluded for any period;
• the board of the partnership has the right to conclude and terminate such an agreement; a decision of the meeting of owners or members of the HOA is not necessary for this (clause 4 of Article 148 of the Housing Code of the Russian Federation);
• the agreement is signed by the chairman of the partnership on behalf of the partnership, the agreement applies to all owners of premises in the house;
• the partnership is not responsible and is not responsible for the quality of services and work and the condition of the house;
• all requirements for the quality of public services, maintenance and management of the house, as well as requirements for the disclosure of information according to the Standard (RF PP No. 731), fines and other administrative penalties for non-compliance with the requirements of housing legislation are presented to the Criminal Code.
• with the transfer of house management functions to the management company, the partnership no longer has the need and obligation to approve the annual budget of income and expenses, report on its implementation and use of funds.

Service agreement between the HOA and the management company

With this method of interaction, the partnership does not transfer the functions of managing the house to the management company. The HOA can transfer only some functions or responsibilities to the management company at its own discretion. This could be, for example, services for the maintenance and repair of common property in an apartment building. Thus, the management company acts as a contractor;

With such interaction between the HOA:

• carries out management of apartment buildings, routine maintenance, maintenance and repair of common property, and also provides utilities;
• requirements on the quality of work performed and services provided to the partnership;
• The management company does not manage the house and does not collect funds for management, so it does not spend it;
• The management company receives remuneration under a service agreement (Chapter 39 of the Civil Code of the Russian Federation). The cost and terms of the service agreement are determined by the management company and the HOA by mutual agreement;
• the agreement is concluded by the partnership on the basis of a decision of the governing body of the HOA in strict accordance with the estimate of income and expenses for the year.

Thus, all requirements for the quality of provision of utility services, maintenance and management of the house, disclosure of information according to the Standard (731 Resolution), fines and other administrative penalties for non-compliance with housing legislation are imposed on the HOA.

If the management company is at fault for the liability of the partnership to the control authorities, for example, when providing poor-quality services for routine repairs of common property in an apartment building under a service agreement, the homeowners association has the right to recover losses from the management company as a contractor under the contract.

Contributions for the maintenance, maintenance and current repairs of the common property of the apartment building are approved by the decision of the general meeting of the HOA members according to the estimate of income and expenses of the partnership for the year. The amount of contributions is set the same for all owners of premises in an apartment building, regardless of membership in the partnership.

Thus, the above differences will help to understand the difference in the interaction between the management company and the partnership under a management agreement and a service agreement.

In the first case, the management company is the performer of works and services under the management agreement, the owners are their customer, and the HOA is only an outside observer and controller. In the second case, the partnership will be responsible for everything, and the management company under the service agreement will act only as a contractor and receive remuneration under the agency agreement.

Which method you choose is your choice. But remember that when concluding a management agreement with the management company, the partnership loses the right to manage the house and becomes a “nominal king”. When concluding a service agreement, the HOA retains full right to manage the house and spend the funds collected from the owners of the premises.

To ensure that the governing body of the HOA does not abuse its powers and does not enter into a management agreement with the management company without the consent of the other owners of premises in the apartment building, it is necessary to stipulate in the charter of the partnership that the general meeting of members of the HOA has the right to conclude management agreements . Only in this case will the goal of creating a partnership be fully realized - independent management of apartment buildings by the owners of premises in the house.

Nuances to consider

Since there is no clearly regulated sample document, and each management company tries to draw up a layout of the agreement exclusively “for itself,” the owners need to study it as carefully as possible. What else to pay attention to:

1. The document must include a complete list of common property. Otherwise, during operation it will be discovered that the management company is not responsible for the roof, basement or surrounding area.
2. The list of repair works can only be changed by agreement with the owners at a general meeting; the company does not have the right to make changes on its own.
3. Rules for renewal and auto-renewal of the contract.

IMPORTANT: it is necessary to pay attention to the clauses on termination of the contract, otherwise it will be difficult for the owners to get rid of the unscrupulous management company.

Procedure for signing and entry into force

Each owner must personally sign the drawn up contract for the provision of services for the maintenance and repair of the common property of an apartment building; on the other hand, it is signed by an employee of the management company who has the right to do so.

The term of such an agreement is from 1 to 5 years, but a different date may be specified in the document. Such an agreement comes into effect 30 days after signing (unless otherwise specified).

IMPORTANT: The management company must have a license to carry out its activities and be registered as a legal entity. persons in the tax authorities.

Why do we need an agreement between the HOA and the management company?

The board of the housing association performs the functions of managing the building by organizing the work of permanent employees who carry out repair work, as well as concluding agreements with resource suppliers. This activity requires solid management experience, which board members selected from among apartment owners may not have.

The house management agreement between the HOA and the management company assumes that all powers of the HOA board to conclude contracts with contractors, collect funds from residents and organize the supply of utility resources are transferred to the management of a third-party company. At the same time, the board of the partnership retains the functions of control over the activities of the management company as one of the parties to the agreement.

The conclusion of an agreement between the management board and the management company allows:

• ensure high-quality performance of repair and maintenance work on common premises;
• provide utility resources to responsible owners, regardless of the number of debtors in the house;
• control the activities of management of the management company;
• determine the amount of remuneration for management of the management company at a meeting of owners.

If the owners choose a management company as a way to manage the house, then control over the company’s activities is hampered by the lack of organization of residents, and in order to change the terms of the contract or change the management company, it will be necessary to convene a meeting of the owners of at least half the square meters of the apartment building.

The management of the management company often abuses the difficulty of changing the way the house is managed, and when concluding an agreement between the management company and the HOA, the board members have the right to terminate the contract with the management company at any time without convening a meeting of owners, which increases the responsibility of the company's management.

Resource supply organizations can suspend the supply of utilities to an entire apartment building if there is a significant amount of debt, and the management of large management companies, unlike the board of HOAs, often have their own funds to pay off current debts, as well as experience in negotiating with suppliers, which will ensure the uninterrupted supply of utilities to residents.