Differentiation of balance sheet ownership of networks
Uninterrupted and high-quality provision of utility services to residents of houses is possible provided that the internal engineering communications and networks that supply resources to the apartment building are in proper condition.
Rules No. 124, mandatory when concluding contracts for the supply of utility resources, as an essential condition of contracts concluded by the MA with the RSO, determine the condition for delimiting the obligations of the parties to ensure maintenance of utility networks.
The division boundary in the distribution of these responsibilities is determined in accordance with the act of delimiting the balance sheet ownership of networks and the act of operational responsibility of the parties. The act of differentiation is of great importance.
Firstly, in the event of an accident, when the house is left without water, heat or light, or the basement is flooded with sewage, the supplier will appeal to the existing boundary division act, and in the absence of one, indicate that emergency communications do not belong to it and it does not service them .
The result, as a rule, is the same: the HOA or management organization is forced, under massive pressure from residents, to urgently eliminate the accident on its own. Even if they were right, practice shows that if there are acts that have not been challenged either through the prosecutor’s office, or through the administration or the State Housing Property Committee, it is not possible to quickly resolve this issue, and as a result, the residents of the house suffer.
Secondly, any networks must be regularly maintained, routinely repaired, and over time, overhauled, often with complete replacement. None of this is cheap. If the balance sheet boundary changes, these costs will be borne in full by the resource supply organization, and the removal of blockages, routine and major repairs of networks will become the responsibility of the supplier.
Thirdly, the management organization is relieved of the obligation to pay for regulatory losses in sections of networks excluded from the act of delimiting balance sheet ownership. This is especially true for heat and power supply networks.
In the absence of acts of delimitation of the balance sheet ownership of networks and the operational responsibilities of the parties, the problem of “ownerless” networks arises, which also requires introducing certainty into the relationship with the resource supplying organization.
On the issue of ownerless utility networks
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VI. Changing the boundaries of responsibility
By mutual agreement of the owner (or owners) of the building and the resource supply organization, the boundaries of responsibility can be changed. To do this, a new act of division boundaries must be drawn up between the owners of the building or individual house (as well as the HOA or management company). Thus, during the life of the structure, the boundaries of responsibility can “move.” If there is a common house meter, the equipment must be transferred to a new “point”.
Problems of determining the boundary of operational responsibility
According to clause 8 of Rules No. 491, the external boundary of the electricity, heat, water supply and sanitation networks, information and telecommunication networks that are part of the common property, unless otherwise established by Russian legislation, is the external boundary of the wall of an apartment building.
The limit of operational responsibility in the presence of a common building metering device for the corresponding utility resource, unless otherwise established by an agreement between the owners of the premises and the utility service provider or RSO, is the point of connection of the ODPU with the corresponding utility network included in the apartment building.
But this is a theory, but in practice everything happens differently. In the overwhelming majority of cases, the resource supplying organization is interested primarily in reducing its costs and, accordingly, increasing profits. Therefore, taking advantage of its dominant position, it tries to sign the demarcation act on the most favorable terms for itself.
To achieve this, RSO strives to establish the boundary of balance sheet ownership and operational responsibility as far as possible from the external wall of the apartment building. Often, delimitation acts, both old and new, make management organizations or homeowners associations responsible for sections of networks outside the apartment complex.
Resource supply organizations, as a rule, appeal precisely to the possibility of establishing a different order by agreement of the parties, citing the fact that the disputed areas are not listed on their balance sheet or were built by the developer exclusively for this house and were not transferred to them. Consequently, since the acts have already been signed assigning part of the networks to the management organization or HOA, then they are valid and there are no grounds for changing the boundaries.
However, here the RSO is being disingenuous, since the resource supplying organization can only enter into an agreement to change the boundaries and move them outside the MKD with the owners, and not with the management organization or the HOA. In the absence of a decision by the general meeting of owners, demarcation acts that establish a boundary outside the external wall of the apartment building are contrary to the law.
Who provides utilities in disputed houses
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I. Limit of liability in individual households
The operation of intra-building engineering networks is carried out as part of the provision of housing services for the maintenance and repair of housing, during which the common property in an apartment building is operated. Based on this logic, the boundary between the property of the resource supplying organization and the resident in an individual household is the “gate” located in the hatch adjacent to the house - the place where the in-house input is cut into the utility network.
However, de jure the “latch”, which infrastructurally separates the property of the resident and the resource supply enterprise, at the same time serves as a boundary of responsibility only for individual houses.
Ways to solve the problem
Our legal system has developed an effective mechanism for bringing demarcation acts into compliance with the requirements of the law.
How is it possible to establish the boundary of balance sheet ownership and operational responsibility of utility networks, which would best meet the interests of the owners of apartment buildings? We see two ways: extrajudicial and judicial.
The out-of-court route is much faster, easier and cheaper than the judicial route, but there is one caveat. The “good will” of the RSO is required to sign an act according to which the balance sheet ownership and operational responsibility for all sections of the networks located behind the external wall of an apartment building is assigned to it.
In the absence of “good will” of the RNO, the only possible way remains the judicial route of establishing the boundaries of the balance sheet ownership and operational responsibility of utility networks.
At the same time, many management organizations, having failed to achieve justice out of court, stop and sign a demarcation act on the terms dictated by the resource supplying organization.
Here are some reasons why management organizations do this:
- they don’t want to quarrel with the RSO;
- they think that going to court is expensive and difficult;
- They believe that suing a monopolist is futile.
We are convinced that these reasons are far-fetched, because... It is impossible by definition to “quarrel” with resource officers while defending your legal rights and interests in court. Our extensive practice shows that there are no negative consequences, and the benefits of reconsidering boundaries are obvious.
Good relations with the RSO often do not provide the MA with any privileges: if you owe it, they will sue you, if you violate the terms of the agreement, no one will turn a blind eye to it. At the same time, no good relationship will force the RSO to promptly carry out repair work in the event of an accident outside the MKD, if the area was included in the zones of your responsibility in the demarcation act.
Regarding the costs of paying for legal services, it must be taken into account that, according to the provisions of the Arbitration Procedural Code of the Russian Federation, these costs will be reimbursed by the RSO. This means that legal services for the MA will be virtually free, and the economic effect and benefits of changing the boundaries of electricity, heat and water supply networks in the future will compensate for the small additional time spent on providing copies of the necessary documents.
The Southern Regional Housing and Communal Services Support Center has been effectively addressing the issue of revising utility network boundary acts for several years. All court cases end in a positive result. Since 2021, the offer of the URCP for housing and communal services has become available to all regions of the Russian Federation.
IV. The main causes of conflicts around the boundaries of responsibility in housing and communal services
▪ Currently, there is no clear legislative definition of whose property the entrances to an apartment building are and who should operate them.
As a result, in many cities they remain ownerless.
▪ Partially contradictory resolutions of the State Construction Committee No. 9 and the Government of the Russian Federation No. 491 give each of the disputing parties a reason to prove their case with reference to by-laws.
▪ In some cases, during housing construction, not only indoor but also street infrastructure is laid at the expense of shareholders. After the housing is put into operation, they become its owners, since resource supply organizations do not want to take on new infrastructure for maintenance2, 3.
QUOTE
Deputy Minister of Housing and Communal Services of the Rostov Region Yuri Tambovtsev:
“According to the law, the limit of responsibility in an individual house in some cases is the metering unit, in others - the wall of the building. While we are sorting out the existing contradictions, the Federal Antimonopoly Service for the Rostov Region has put forward a third version. In her opinion, this point could be the fence of the household. Legislators will still have to work on this legal issue.”
VII. Entries into the house and abandoned networks
Considering that, despite the existing contradictions in current legislation, older regulatory documents recognize the wall of the house as the limit of responsibility, and resource supply organizations usually own the infrastructure that extends to the “gate” (hatch), entries into the house often turn out to be ownerless. If neither the residents (homeowners' association or management company) nor the resource supplying organization want to serve them, these communications are usually transferred to municipal ownership.
In Rostov, there are examples of transferring inputs to the balance of the city, even in private households. At the same time, another option is being practiced in the city - the owners lease these communications to resource supply companies.
If you have ownerless networks, you should contact the district or city administration. Although this legal issue has not been fully regulated.
Sources:
- pp. 8–9 Resolution of the Government of the Russian Federation dated August 13, 2006 No. 491 “On approval of the rules for maintaining common property in an apartment building.”
- Rostov-Dom “In Solnechny there is a shortage of light and truth.”
- Section of the site “Ask a Lawyer”, comment No. 4.
