Rules for payment of utilities for non-residential premises of an apartment building

Legislative regulation

Payment for housing and communal services by consumers in non-residential and residential premises is regulated by:

1. Decree of the Government of the Russian Federation dated May 6, 2011 N 354 “On the provision of utility services to owners and users of premises in apartment buildings and residential buildings” (hereinafter Resolution 354).
2. Housing Code of the Russian Federation.
3. Civil Code of the Russian Federation.
4. Decree of the Government of the Russian Federation dated August 13, 2006 N 491 (as amended on December 15, 2018) “On approval of the Rules for the maintenance of common property in apartment buildings and the rules for changing the amount of payment for the maintenance of residential premises in the case of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building of inadequate quality and (or) with interruptions exceeding the established duration" (hereinafter Resolution 491). More information about what management of non-residential premises is and how to conclude an agreement with a management company, HOA, housing cooperative, between owners can be found here.

If a commercial object is located not in an apartment building (hereinafter referred to as an apartment building), but in a non-residential building, then the norms of the Housing Code of the Russian Federation do not apply to this object. But the owner of such a premises, when consuming utility resources, is obliged to pay for them according to the tariffs that apply in his region.

On heating non-residential premises in an apartment building. Educational program from the Armed Forces

On the one hand, being the owner of non-residential premises in an apartment building is a little easier than in a non-residential building, because relations both with neighbors and with the RSO and ICU (MC, HOA, TSN, etc.) are more or less regulated.

On the other hand, this regulation sometimes leads to a somewhat unfair situation, since if some of the premises in an apartment building have some characteristics, and some others, we potentially run the risk that one norm for everyone will discriminate against someone.

An example is the long-suffering heating of premises in apartment buildings in general and non-residential premises in particular.

I already wrote about this issue in my essay.

The legislation in 2021, after a number of comments by the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, changed and began to take into account the individual characteristics of the premises (heated or not, whether there are heating devices or not, whether there are metering devices or not).

But, firstly, before 2021, quite a lot of relationships had developed regarding the supply of thermal energy to the premises of apartment buildings, and secondly, modern legislation has also not fully regulated the issue.

The RF Armed Forces again began to look into finding a correct and fair mechanism for determining heating fees in a series of cases, for which we are very grateful.

The first case, the consideration of which has been completed, is A53-39337/2017.

Its essence is simple: the owner of a non-residential premises, which was heated, took steps to reconstruct it by removing heating devices and connecting to an individual heat source (gas boiler room).

The court of first instance, on the basis of Rules 354, satisfied the claim of the HOA for the collection of heating fees; the court of appeal and cassation did not support this decision and refused to satisfy the claim.

The claim period is 03/01/2015 to 04/15/2017 (it should be noted during this period that the position of the RF Armed Forces on heating from risers and transit heat supply networks appeared and the rules for determining the counterparty and the amount of payment for heating in the non-residential premises of an apartment building changed).

The Supreme Court also speaks about this, interpreting Rule 354 in a slightly expansive but fair way as amended until 2021:

“The changes introduced from January 1, 2017 by Decree of the Government of the Russian Federation dated December 26, 2016 No. 1498 to Rule No. 354 provide that the supply of cold water, hot water, thermal energy, electrical energy and gas to non-residential premises in an apartment building, as well as the removal wastewater is carried out on the basis of resource supply contracts concluded in writing directly with the resource supplying organization (clause 6 of Rules No. 354). At the same time, the organization managing the apartment building retained the right to demand from the owners of non-residential premises the cost of utilities provided for general house needs (clause 40 of Rules No. 354).

In this regard, the partnership

, chosen by the owners to manage the apartment building in December 2014 and which entered into a heat supply agreement with a resource supply organization in February 2015 to provide communal heat supply services to the owners of residential and non-residential premises, contrary to the conclusions of the courts of appeal and the district,
has the right to demand payment of the cost of the heating service
until 01/01/2017 in in full,
and after 01/01/2017 - at least in the amount attributable to general house needs.”
That is, despite the modern edition of Rule 354 (according to it and according to the old edition, both communal and individual heating is billed by RSO), the RF Armed Forces believes that heating in terms of communal consumption is paid for by the ICU. Formally, legally, in relation to the periods from January 2021 to December 2021, the Supreme Court of the Russian Federation is right, but wouldn’t it be more correct to point out that the issue of heating from 2021, in principle, is not an issue for the HOA; this conclusion, after all, can also be justified teleologically by interpreting Rules 354.

Regarding the issue of admissibility by dismantling the heating system or in the absence of heating devices, in principle, not paying for heating should be decided, in the opinion of the RF Armed Forces, according to the following standard of proof.

1. It is assumed that any room through which the heating system passes in an apartment building is heated.

2. This presumption is rebuttable, including by reference to the old definition of the RF Armed Forces, the owner of a premises without heating devices must prove complete thermal insulation of heating networks, including risers. Also, if the owner has removed the heating appliances, he must also prove, despite the thermal insulation, that he did it legally. In rules 354, the legislator makes a remark in this regard, that until the ban on individual heating of premises in apartment buildings appears, the removal of heating appliances is legal.

3. Further, the Supreme Court points out that if, when the specified circumstances are identified, the premises do not individually consume thermal energy from risers and transit networks, then at least the general house consumption attributable to it must be calculated.

And this calculation must be made either with the involvement of an expert, or by analogy applying the currently valid version of Rule 354 to periods up to 2021.

On June 17, 2019, another case A60-61074/2017 was considered on the same issue, where the Supreme Court drew attention to the design documentation of the house, according to which heating is provided in the Defendant’s non-residential premises due to heat transfer from transit pipes. That is, in fact, the Supreme Court has already predetermined the outcome of the case in favor of the Plaintiff, although it seems to me that there is a nuance taking into account the position of the Constitutional Court of the Russian Federation on premises without heating devices.

On July 24, 2019, the third case A57-363/2018 will be considered (claim period October 2021 to April 2021), which will also concern the transition to individual heating.

Who makes payments and how?

According to paragraph 65 of Chapter. 6 of Resolution 354, the consumer of services can independently pay for them, or can instruct other persons to pay by any means that do not contradict the requirements of legislative acts and the concluded agreement.

If the owner of the premises provides it for rent, then responsibility for paying for housing and communal services still remains with the owner of the property.

You can pay expenses immediately, or you can pay them in installments, but you cannot violate the deadline for payment of utilities established by the contract. The consumer has the right to make prepayments for future billing periods.

Contents and form of the agreement

The contents of the agreement on the provision of utility services are enshrined in Chapter. 3 of Regulation 354. The agreement must include:

1. Date, place of detention.
2. Details of the parties (names, addresses, payment and contact information). If the contract is concluded with an individual entrepreneur, then his passport data is required. If the counterparty is a legal entity, then you need to indicate the place of state registration.
3. Information about the premises where services are provided. It is necessary to indicate the area of ​​the facility, the type of activity carried out there, and other information.
4. Type of utilities provided.
5. Qualitative characteristics of the services provided.
6. The procedure for accounting for consumed resources (standard, metering device or other methods).
7. Information about metering devices (if any). Be sure to indicate the location, date of installation, date of last verification, date of next verification. It is also necessary to determine the procedure and conditions for receiving testimony.
8. The procedure and frequency of control checks by the contractor of metering devices.
9. The procedure for determining the amount of payment for services, the procedure, form and terms of payment.
10. Method and address for delivery of payment documents to the consumer.
11. A method for establishing the fact of the absence of housing and communal services or their provision of inadequate quality. The procedure for changing the size of the fee in the specified situations.
12. Rights, obligations, responsibilities of the parties to the agreement.
13. Grounds and procedure for restricting or suspending the provision of services.
14. Grounds for termination or modification of the contract. The procedure for doing this.
15. Duration of the agreement.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

An agreement for the provision of services can be concluded in writing or by performing actions that indicate the intention to consume services (actual consumption).

The supply of resources to non-residential facilities is carried out only on the basis of a concluded written agreement.

Heat supply agreement with the owner of non-residential premises

This article appeared in the wake of a recent contractual dispute between a heat supply company and a consumer - the owner of a premises in an apartment building.

From January 1, 2021, if a consumer in a non-residential premises does not have a written resource supply agreement concluded with a resource supplying organization, the volume of utility resources consumed in such non-residential premises is determined by the resource supplying organization by calculation methods, for cases of non-contractual consumption (unauthorized use).

The Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings (hereinafter referred to as Rules 354) tell us this.

Utility or utility resource

According to Rules 354, the consumer - owner of non-residential premises ceased to be a consumer of a utility service and became a consumer of a utility resource.

According to the same Rules 354, the supply of energy resources to non-residential premises in an apartment building is carried out on the basis of a resource supply agreement concluded in writing with the resource supplying organization. The agreement must comply with the provisions of the legislation of the Russian Federation on water supply, sanitation, electricity supply, heat supply, gas supply.

At the same time, the determination of the volume of thermal energy consumed in non-residential premises and the method for consumers to pay for utility services (it seems that the legislator has not fully decided on the concepts) for heating is carried out in accordance with Rules 354.

If the resource supply agreement does not comply with the provisions of the legislation of the Russian Federation on water supply, sanitation, electricity supply, heat supply, gas supply, the agreement is considered concluded on the terms provided for by the legislation of the Russian Federation on water supply, sanitation, electricity supply, heat supply, gas supply and Rules 354.

What is the result? The agreement, on the one hand, ceased to be an agreement for the provision of utility services, and on the other hand, remained an agreement for the provision of utility services in terms of the procedure for determining the volume and method of payment for utility services for heating.

Determining the amount of resource allocated to the consumer

In terms of determining the amount of thermal energy supplied to the consumer, not everything is clear either.

The rules for organizing heat supply (hereinafter referred to as Rules 808) establish the procedure for organizing heat supply to consumers, including the essential terms of heat supply contracts.

In accordance with paragraph 35 of Rules No. 808, in order to conclude a heat supply agreement with a unified heat supply organization, the applicant sends to the unified heat supply organization an application for concluding a heat supply agreement, containing, among other things, the following information:

• heat load of heat-consuming installations by type of heat load (heating, air conditioning, ventilation, implementation of technological processes, hot water supply), confirmed by technical or design documentation;
• the contractual volume of consumption of thermal energy and (or) coolant during the term of the contract or during the 1st year of the contract, if the contract is concluded for a period of more than 1 year;
• calculation of the volume of heat losses of thermal energy (coolant) in the applicant’s heating networks from the balance sheet boundary to the metering point, confirmed by technical or design documentation.

And when concluding contracts, heat supply organizations are guided, first of all, by Rules 808. Including when determining the amount of supplied thermal energy and coolant. For example, in terms of thermal energy losses (which is not covered by Rules 354)

Payment method - what is it?

The method of payment by consumers for heating utility services is determined in accordance with Rules 354.

According to paragraph 42(1) of Rule 354, payment for heating utilities is carried out in one of two ways - during the heating period or evenly throughout the calendar year.

Rule 808 uses the concept of payment method in a completely different way.

The order and correctness of calculations is an opportunity for the consumer to control charges

Rules 808, differently than Rules 354, regulate the procedure for payments for consumed resources for Consumers.

According to Rules 808, consumers pay for thermal energy (power) and (or) coolant in the following order:

• 35% of the planned total cost of thermal energy (power) and (or) coolant consumed in the month for which payment is made is paid by the 18th day of the current month;
• 50% of the planned total cost of thermal energy (power) and (or) coolant consumed in the month for which payment is made is paid before the end of the last day of the current month;
• payment for thermal energy (power) and (or) coolant actually consumed in the past month, taking into account the funds previously paid by the consumer as payment for thermal energy in the billing period, is made until the 10th day of the month following the month for which payment is made .

Rules 808, when determining the planned quantity, rely on the contractual load, and Rules 354 do not operate with this concept at all.

The question arises - how to combine the payment method from Rule 354 and the payment procedure from Regulation 808.

Taking into account the peculiarities of charging for heating, the consumer finds himself hostage to the situation between the management company and the resource supplier.

In accordance with Appendix 2 of Rules 354, the amount of payment for utility services for heating in the i-th non-residential premises in an apartment building, which is equipped with a collective (common house) heat energy meter, is determined taking into account the volume of thermal energy consumed in the apartment building according to the readings of the collective (common house) meter thermal energy.

A conscientious Consumer (in the absence of his own heat metering device), who has already paid 85% of the planned cost of the consumed resource provided for in the Appendix to the heat supply agreement, receives settlement documents from the heat supply organization and sees volumes there that cannot be verified without data from third parties.

And, turning to the Supplier, the Consumer receives a decoding of his own numbers, and not a detailed calculation using data from third parties.

Rules 808 do not provide for the right of consumers to receive detailed calculations of the amount of resource consumed, and Rules 354 regarding consumer rights do not apply to the owner of non-residential premises.

The standard resource supply agreement (Appendix 1(1) to Rules 354) contains the consumer’s right to receive information from the resource supplying organization about the correctness of charges. But this standard agreement concerns the provision of utility services, and not the supply of resources. This is something that resource supply organizations never forget to remind you of in court.

What remains for the consumer?

Dispute with the supplier at the stage of concluding a contract. Conclude an agreement on terms that will allow the Consumer to receive reliable information about payments. Include in the contract provisions on determining the volume and method of payment in accordance with Rules 354.

We must pay tribute to the courts, which recognize the rights of Consumers and include appropriate conditions in heat supply contracts.

These are not all the contradictions between regulations that make it difficult for the Consumer to communicate with the Supplier.

What does the owner give money for?

The owner of a non-residential premises pays for the consumed utility resources. In addition to these, the expenses of the owner of a non-residential property located in an apartment building include operating costs and expenses for general house needs.

The owner of non-residential premises is obliged to pay the costs of major repairs of the common property of the apartment building (Article 158 of the Housing Code of the Russian Federation).

Utility resources include heat, gas, water supply, sewerage and electricity supply. The supply of resources occurs under contracts that the owner of the premises must conclude directly with the resource supplying organization. Find out more about the specifics of setting tariffs and calculating payments for electricity and heating.

According to paragraph 69 of Resolution 354, the payment document must indicate:

• Address of the object;
• payer's details (full name for individual entrepreneurs, name for legal entities, bank details, place of registration);
• list of services subject to payment, month of payment;
• the volume of consumption of each type of resource for the period and the amount of payment;
• information about recalculations;
• information about deferment or installment plan (if provided for in the contract);
• other information.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

Procedure for providing services

According to the norms of Resolution No. 354, the services of supplier organizations are provided from the time the property rights of the owners of non-residential areas are recognized. Their composition depends on the degree of improvement of the apartment building and includes:

• electrical supply;
• supply of gas, water (cold and hot);
• drainage;
• collection of solid waste (solid waste).

With the exception of heat supply, which is provided only during the cold season, all other services are provided year-round.

IMPORTANT! The basis for the provision of certain public services is a paid agreement with resource-providing entities.

Such a document between the communal organization and the owner of the non-residential area in the apartment building must be in writing. In the absence of an agreement, the supply of services is carried out on the basis of calculations made by the resource supplying organization itself (based on Resolution No. 1498 of December 26, 2016).

Mandatory expenses for general household needs

General house needs include expenses of utility resources necessary for the normal functioning and maintenance of the condition of the common property of an apartment building (attics, entrances).

The maintenance of common premises and work on their maintenance are also included in the ODN. The maintenance of common property according to clause 11 of Resolution 491 includes:

• maintaining premises in the required condition for operation;
• cleaning and maintenance of common areas;
• collection and removal of reinforced waste;
• maintenance of sites for MSW (formerly MSW);
• care and maintenance of landscaping and landscaping elements;
• installation, commissioning and verification of communal meters;
• current and major repairs of common property.

What is common property and common areas in apartment buildings and whether owners are required to maintain these areas, read here.

According to Art. 249 of the Civil Code of the Russian Federation, all participants in shared ownership are required to participate in the costs of maintaining the property in proportion to their share.

Maintenance tariff

For non-residential properties, the tariff for operating services is determined by an agreement concluded between the owner of the premises and the management company. The tariff for operating services does not depend on the legal status of the owner of the premises, but on the actual use of the facility.

For example, if the premises were empty, then the tariff for operating services could be minimal . If the facility later began to be used for commercial activities, the management company may insist on concluding a new agreement with an increase in the operating tariff.

To ensure commercial activity, it is necessary to provide services in a volume exceeding the household level (garbage removal, maintenance of the local area). If the premises contain an office or warehouse, then usually the tariff for operating services for the owner of such a facility does not differ from the rate for apartment owners.

Payment for utilities by the owner of non-residential premises is carried out in the same way as by individuals - according to meter readings. At the same time, the cost of a unit of resources for legal entities and individual entrepreneurs differs significantly from the rates for household consumers (individuals). Most often, for commercial organizations, the industry average tariff is applied.

The tariff for resources for general household needs is the same for all household consumers - individuals, legal entities and individual entrepreneurs, since the owner pays not directly to the resource supplier, but to the management organization.

The cost of utility resources for legal entities and individual entrepreneurs will be higher than for household consumers due to the difference in tariff. The rate for expenses for one-time taxation for legal entities, individual entrepreneurs and residents will be the same.

What are the justifications for utility tariffs?

Determining utility tariffs is the prerogative of local governments, which justify them using independent expert data. For consumer settlements with resource supplying organizations, these values ​​are used only after their approval by a special energy commission accredited by the State Construction Committee of the Russian Federation.

In the cost of utilities, a significant share is made up of the cost of purchased energy resources. To provide heat supply services, the percentage of costing items is as follows:

• costs for different types of fuel – about 35%;
• costs for used electrical energy ≈ 9–10%;
• salary costs (with deductions) – about 15%.

The structure of costs for water supply is expressed, respectively, by values ​​of ≈ 20%, 18–20%, 15%. It also includes a revenue component, which for all utilities is set at approximately 5%.

The main reason for increasing utility tariffs is the increase in prices for gas, electricity, water, and heat, which is the result of an increase in inflation. Tariff revisions, according to federal law, should occur no more than once a year.

How to pay?

You can pay for utilities in any convenient way, unless otherwise stated in the concluded agreement (clause 65 of Chapter 6 of Resolution 354). You can pay:

1. in branches of banking institutions;
2. in Internet banking systems;
3. in post offices;
4. payment terminals, etc.

Payment can be made in cash and by bank transfer, by postal transfers or by bank card, on the Internet and in other forms provided for by current legislation. The payment document must be kept for at least three years from the date of payment.

On our Internet portal you will find other articles about the rules for the use and ownership of non-residential real estate, namely:

• How to draw up a flood report?
• How to conclude an agreement with an office cleaner?
• What are the nuances of maintenance and resource supply?

How does the procedure differ from that for a residential property?

The owner of a non-residential property is obliged to enter into direct contracts with resource supply organizations.

If the object is located in a non-residential building, then its owner is not obliged to contribute funds for major repairs. In the absence of an agreement for the maintenance of the local area with the management company, this expense item is also not payable. But the owner of the premises will have to maintain and maintain the adjacent territory independently.

To connect utility resources, the owner of a non-residential property must enter into contracts directly with providers of these services. In addition, the owner of the property will have to bear the burden of maintaining common premises, although he does not actually use them.

There is one way to avoid this expense item - to buy premises in a non-residential building. But then you will have to independently organize the cleaning of the surrounding areas and the maintenance of technical premises in a usable condition.

Calculation of the amount

When calculating the amount paid for services consumed during the month, the tariffs of the supplying organization are applied. Calculation of resource consumption comes down to using a formula in which the monthly recurring value is the tariff (price per unit of resource). The variable quantity is the amount of resource consumed.

For hot and cold water

The constantly changing value is determined using common household or individual devices. Thus, by simply multiplying the above values, the payment amounts for gas, hot and cold water, recycled waste, and electricity consumed in a commercial premises are calculated:

P = V x T, where:

• P – amount in rubles to be reimbursed for services used.
• V is the amount of resource consumed during the estimated time.
• T – tariff.

For heating

The amount to be paid monthly for heating (if metering devices are not installed in the non-residential area or house) is determined by multiplying three factors:

P = S x N x T, rub, where

• total area of ​​non-residential premises (S);
• standard value of heating consumption (N);
• established tariff (T).

Depending on the frequency of payment for heating services - year-round or throughout the heating season - a coefficient to the consumption standard (K) is used. It is determined by dividing the heating season time (in months) by the number of months in the year, i.e. by the number 12.

P = S x (N x K) x T, rub.