Despite the fact that in the listed legislative acts the concepts of the point of delivery and the boundaries of balance sheet ownership and operational responsibility differ, their essence still boils down to the following.
Delivery point
– the place of fulfillment of the obligations of the RSO, which is located at the place of installation of the control center, and in its absence, at the border of the balance sheet.
Balance sheet limit
– the boundary between networks based on ownership.
Operational Responsibility Limit
– the boundary of division of networks based on the imposition of the burden of maintenance, which runs along the boundary of the balance sheet, unless the parties to the agreement have agreed otherwise.
Changing boundaries with the consent of the owners.
The provisions of the Housing Code of the Russian Federation, the Rules for the provision of utility services, as well as the Rules for the maintenance of common property regulate the relationship under the resource supply agreement, since it is concluded by the utility provider with the RSO for the purpose of providing utility services to citizens. In accordance with the Housing Code of the Russian Federation, under an apartment management agreement, the executor is responsible to the owners for the maintenance of common property in the house.
The common property of the owners of premises in an apartment building includes, among other things, engineering communications located inside the house (clauses 5 – 7 of the Rules for the maintenance of common property) or outside it on a land plot that is part of the common property in an apartment building (clause “g” clause 2 of the Rules for the maintenance of common property), and intended for the maintenance of this house.
In accordance with clause 7 of the Rules for the maintenance of common property, the control center is installed at the border of the networks that are part of the common property of the owners of premises in the apartment building, and refers to the common property.
According to clause 8 of the Rules for the maintenance of common property, the external boundary of the networks that are part of the common property is the external boundary of the wall of the apartment building, and the boundary of operational responsibility in the presence of the control center of the corresponding communal resource is the place of connection of the meter with the corresponding engineering network of the apartment building. An agreement between the owners of the premises and the utility service provider or RSO may establish a different limit of operational responsibility.
Consequently, the boundary of the balance sheet is the outer boundary of the wall of an apartment building or the boundary of a land plot in the case when the boundaries of the plot are determined on the basis of state cadastral registration data and when the utility networks located within the boundaries of this land plot serve exclusively one house. The boundary of balance sheet ownership is at the same time the boundary of operational responsibility, unless the owners of the premises have established a different boundary.
The installation location of the control unit is the boundary of the networks that are part of the common property in the apartment building.
There are differences regarding the outer boundary of the gas supply networks: this is the point of connection of the first shut-off device with the external gas distribution network.
Thus, the RSO can change the boundaries of operational responsibility only by agreement with the owners of premises in the apartment building, who have signed acts of delimitation of operational responsibility with boundaries that go beyond the balance sheet (or have made this decision).
How to get rid of “extra” responsibilities?
Often, homeowners associations sign agreements with resource supply organizations “automatically”, believing that the agreement is standard, and they still won’t be able to change anything.
And at the same time, they draw up an Act on the Separation of Operational Responsibilities, according to which responsibility for external infrastructure facilities falls on the shoulders of the owners. This usually happens when such facilities are not owned by municipalities, and the corresponding resource supply organization is not charged with servicing them. In order to get rid of unnecessary expenses and restore justice, the HOA can apply to the City Administration (or to the court) with an application to recognize the objects as ownerless with their subsequent transfer to municipal ownership. It is also possible to challenge in court the Act of delimitation of operational responsibility by proving that the disputed objects are not the property of the HOA, and the owners of the apartment building premises did not make any decisions either on their inclusion in the common property or on expanding the boundaries of operational responsibility. If the HOA attracted a management company, which, in its interests, concluded such an unfavorable agreement and paid for it at the expense of the owners of the apartment buildings, you can also demand the return of the unjustifiably spent money of the owners of the premises for the previous three years. The article was published in the magazine “Chairman of the HOA” No. 6 for 2016.
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Acts of demarcation.
The boundaries of operational responsibility and balance sheet ownership are established by the parties when concluding an agreement and determine which areas of engineering equipment will be serviced by the utility service provider. In order to avoid disputes during the execution of the contract with RSO, we recommend that performers sign the above-mentioned acts at the stage of concluding the contract. The following must be taken into account.
Acts of delimitation of balance sheet ownership and operational responsibility are signed by the parties in the process of technological connection of consumer networks to RSO networks; they can also be signed (in the absence of previously drawn up acts) in the process of concluding an agreement with RSO.
In accordance with Decree of the Government of the Russian Federation dated August 13, 2006 No. 491, local self-government bodies must determine the boundaries of the land plot related to the common property of the house for each apartment building. The boundaries of the land plot that is part of the common property in the MKD determine the boundaries of balance sheet ownership and operational responsibility, which must be recorded in the relevant acts with the RSO. Consequently, if the boundaries of a land plot are larger than the area of the apartment building, the maintenance of engineering communications passing through this land plot is assigned to the management company on the basis of a management agreement.
If state cadastral registration has not been carried out in relation to the land plot, the boundary of the balance sheet of the networks is the external wall of the apartment building.
Rating of management organizations
Since May 14, 2021, a new system for assessing the work of management organizations has been in effect in the Moscow region. Companies are assessed based on six criteria, after which the MA receives a certain number of points. The place in the ranking is determined by the sum of points received.
The rating is required to:
- inform residents about the quality of the activities of the educational institution;
- motivate management organizations to perform their work efficiently and effectively.
The rating is calculated based on data from the regional State Housing Inspectorate, Gosadmtekhnadzor, the Ministry of Housing and Public Utilities, the Association of Chairmen of Councils of MKDs, as well as data from the management organizations themselves.
Criteria for assessing the work of the MA
1. Organization of dispatch services for the population through the UDS portal.
2. Assessment of the activities of the MA:
- cleaning of entrances;
- quality of utilities: heating, water supply, lighting;
- interaction between the management authority and residents;
- the quality of current work carried out by the management authority in the MKD.
3. The presence of identified violations based on citizens’ appeals as a result of inspections of the Civil Housing Inspectorate.
4. Conducting annual OSS in electronic form.
5. Maintenance of indoor gas equipment (VKGO).
6. Implementation of management plans for routine repairs of apartment building entrances.
How points are awarded
For each criterion a certain number of points are awarded. As a result of the calculation, the vehicle falls into one of three zones - green, yellow or red.
You can view detailed calculation schemes for each of the criteria in the “Regulations on assessing the effectiveness of the activities of organizations managing the housing stock in the Moscow region.”
Where to vote
On the website YouReshaeshZhKH.rf
Current ranking of educational institutions in the Moscow region
You can view the rating of the management organization on the Dobrodel service.
On the website of the State Housing Inspectorate of the Moscow Region.
Where to go if you have complaints against the MA
If the work of the management organization does not suit the residents, they can contact the supervisory authorities or use special services.
- State Housing Inspectorate of the Moscow Region
- Portal of the unified dispatch service of the Moscow Region
Compliance with legislation by all subjects of housing relations is monitored by the State Housing Inspectorate of the Moscow Region. Employees of the supervisory agency can organize an unscheduled inspection only after receiving a request from residents.
How to send a request:
- through the State Information System of Housing and Communal Services (GIS Housing and Communal Services);
- through Russian Post;
- come to the central office of the State Housing Inspectorate of the Moscow Region* or to one of the 28 territorial departments.
* Moscow region, Odintsovo city district, Barvikhinskoe village, Razdory village, 1st km of Rublevo-Uspenskoe highway, 1, building A.
Consultation can be obtained by calling the supervisory agency hotline 8.
You can also complain about improper operation of the control center through the portal of the Unified Dispatch Service of the Moscow Region (EDS MO). The service allows you to quickly solve problems in apartment buildings without going to the management company and filling out paper documents. The deadlines for the execution of applications submitted through the EDS MO are strictly regulated, and the quality and timeliness of the work performed is controlled by the State Housing Inspectorate.
Ownerless networks.
Quite often, utility networks are not the responsibility of any party to a resource supply agreement, that is, they are ownerless. Who is responsible for maintaining these networks and paying for losses of utility resources in them?
According to the current legislation, if a section of networks between the MKD networks and the DSO networks is ownerless, when setting the tariff for the DSO, the costs of maintaining, repairing and operating this section of the networks are taken into account. This is what it says:
in the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply” (Part 4, Article 8, Parts 5, 6, Article 15);
in the Federal Law of December 7, 2011 No. 416-FZ “On Water Supply and Sanitation” (Parts 5, 6, Article 8);
in the Federal Law of March 26, 2003 No. 35-FZ “On Electric Power Industry” (Part 4, Article 28).
It is illegal to blame consumers and providers of utility services for losses of utility resources in ownerless sections of networks. This conclusion regarding electricity losses was made in the Decision of the Supreme Arbitration Court of the Russian Federation dated October 28, 2013 No. VAS-10864/13.
We establish the boundaries of utility networks according to the law.
When concluding an agreement with RSO.
The ideal option for the manager of an apartment building is to establish legal boundaries of operational responsibility when concluding an agreement with the RSO. But how can this be achieved if the RSO insists on different boundaries of responsibility? The manager should not rush to sign acts delineating operational responsibilities on illegal terms.
In accordance with civil law, a contract is considered concluded if an agreement is reached between the parties on all the essential terms of the contract. The legislator also included the condition on the limit of operational responsibility as an essential condition of the energy supply agreement. This condition is agreed upon by the parties by signing an act of delineation of operational responsibilities.
Consequently, if RSO proposes to conclude an agreement with an act of delimitation of operational responsibility, in which the boundaries go beyond the common property of the owners of premises in the apartment building, it is necessary to sign such an agreement with a protocol of disagreements regarding the boundaries of responsibility. In the protocol of disagreements, it is necessary to indicate the condition on the boundaries of operational responsibility with reference to clause 8 of the Rules for the maintenance of common property: the boundary of operational responsibility runs along the outer boundary of the wall of the apartment building (the boundary of the land plot that is in the common shared ownership of the owners of the premises in the house).
When considering disputes regarding the settlement of disagreements when concluding energy supply contracts, the courts approve such contracts in relation to the conditions on the boundaries of operational responsibility. Examples from practice include the decisions of the Supreme Court AS of November 19, 2015 in case No. A29-10092/2014, the ZSO AS of November 9, 2015 in case No. A75-1441/2015, the SKO AS of December 11, 2015 in case No. A25-953/2014 .
If network boundaries are not in the agreement with RSO .
If the parties did not go to court to resolve disagreements when concluding a resource supply agreement and the protocol of disagreements remained unsigned by the RSO, if disputes arise regarding the volumes of supplied resources and the limits of responsibility, the agreement will not be recognized by the court as not concluded, since the condition on the limits of operational responsibility can be regulated by law.
In Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 7, 2010 No. 3409/10, the court came to the conclusion that the absence of an act of delimitation of balance sheet ownership agreed upon by the parties cannot indicate that the parties did not conclude an agreement. In the absence of an act of delimitation of the operational responsibilities of the parties, the boundary of operational responsibility is established according to the balance sheet, and the latter is determined on the basis of ownership.
If the agreement with RNO establishes the boundaries of networks not according to the law.
As a rule, an agreement is concluded for a certain period and is considered extended on the same terms if neither party declares within a certain period of time its intention to conclude an agreement on new terms.
In the manner established by the resource supply agreement, the utility service provider has the right to declare termination of the agreement and the conclusion of a new agreement on different terms. In the new agreement, he will be able to achieve agreement on the boundaries in the wording he proposed (if necessary, in court).
Metering devices: procedure and responsibility
Uncertainty in establishing the rights and obligations of participants in housing relations when they comply with the mandatory requirements of legislation on energy saving, in particular, in equipping apartment buildings with metering devices, began to lead to the formation of negative law enforcement practice in the regions. The latter began to be enshrined in court decisions and contribute to the creation of so-called legislative deadlocks, when, as a result of court decisions, persons for whom sanctions were directly established for failure to comply with mandatory requirements are released from administrative liability. In the future, these persons prevent other participants in housing relations from fulfilling their responsibilities and disrupt the implementation of state and municipal energy saving programs.
Formation of negative judicial practice
An example of the formation of such negative law enforcement practice is the decision of the Arbitration Court of the Nizhny Novgorod Region in case No. A43-9352/2013, issued on July 4, 2013. With this decision, Judge M. Chepurnykh declared illegal and canceled the resolution of the State Housing Inspectorate of the Nizhny Novgorod Region in the case of an administrative offense dated April 2 .2013 No. 515-04-1281-13Kyu, according to which the person responsible for the maintenance of an apartment building, OJSC House Management Company of the Kanavinsky District, was fined in the amount of 20 thousand rubles. according to Part 5 of Art. 9.16 of the Code of the Russian Federation on Administrative Offences.
Let us recall that this article of the Code of Administrative Offenses provides for liability for non-compliance by persons responsible for the maintenance of apartment buildings with the requirements to develop and communicate to the owners proposals on energy saving measures to improve energy efficiency in apartment buildings. Such a proposal, in the absence of a metering device, should be directed to its installation in accordance with Part 1 of Art. 13 of Federal Law No. 261-FZ of November 23, 2009 “On energy saving and increasing energy efficiency and on introducing amendments to certain legislative acts of the Russian Federation.” In this case, the apartment building did not have a communal electricity meter. Residents of the house complained to the housing inspectorate about their manager - about the lack of proposals on her part aimed at installing metering devices. The Housing Inspectorate conducted an inspection, and since the fact of the violation was confirmed, it applied the sanctions provided for by the Administrative Code, which were challenged by the violator in court.
Unfortunately, the court accepted the management company’s arguments that information about the statutory deadlines for installing common building metering devices was brought to the attention of the owners of the premises by placing “notices” in apartment buildings that the work on installing the metering device could only be carried out by it on the basis of a decision general meeting of premises owners, but this decision was not made by the owners, and therefore the management company was not able to ensure their installation. In addition, the court took into account the arguments that the responsibility to equip an apartment building with a metering device after 07/01/2012 was assigned to the resource supply (grid) organization and the management company did not bear any responsibility after this period.
Thus, the Arbitration Court of the Nizhny Novgorod Region believes that in order to fulfill the requirements of this article of the Code of Administrative Offenses, it is enough to post notices on the entrance, which will be torn off by the wind tomorrow, and the person responsible for the maintenance of an apartment building does not have to worry about fulfilling the mandatory requirements of the law at all.
This court also believes that after July 1, 2012, the person responsible for the maintenance of an apartment building is generally released from all liability for the lack of a meter in the apartment building, since the resource supplying organization becomes responsible. Thus, the court made another article of the Code of Administrative Offenses inapplicable - this time Part 4 of Art. 9.16, which establishes liability for failure by persons responsible for the maintenance of apartment buildings to comply with the requirements for their equipment with metering devices and the requirements for carrying out mandatory measures to save energy and increase the energy efficiency of the common property of the house. After all, without a metering device, it is impossible to carry out any energy saving measures, and the management organization, according to the decision of Judge M. Chepurnykh, is not obliged to install it.
After such a court decision, the requirements of the Rules for the Maintenance of Common Property, approved by Decree of the Government of the Russian Federation of August 13, 2006 No. 491, regarding the maintenance, payment, and commissioning of metering devices, also become optional for management organizations. After all, if there is no metering device as part of the common property, then there are no problems with its maintenance and service. And making sure that there is no metering device in the house is as easy as shelling pears for the management company. And you can easily create problems for resource supply organizations to fulfill their duties, since the specified rules, as part of the fee for maintenance and repairs, provide for the procedure for reimbursement of their expenses.
The negative social consequences of such a court decision are obvious, which is why in this case we are talking about the formation of negative judicial practice that paralyzes the activities of control and supervisory authorities in the housing sector while they protect the interests of citizens. However, responsibility for the current state of affairs lies not only with the judiciary. In fact, regional courts are forced to “work out” for the federal executive authorities, which, since 2006, have been issuing one normative act after another with virtually no regard for the opinions of the regions, and most importantly, without taking into account the feasibility of the adopted legislative provisions.
Responsibility of management organizations
Despite the complexity of the federal housing legislation on energy saving, the lack of necessary clarifications from the Ministry of Regional Development of Russia and the State Construction Committee, it should be noted that, in general, the current legislation, when properly applied, makes it possible to comply with the mandatory requirements of the law, including the requirements for equipping the housing stock with metering devices. Frequently used arguments that the laws are bad and therefore their requirements should not be fulfilled are baseless and only indicate the irresponsibility of their authors. Unfortunately, such arguments are often given by those who, by virtue of their position, must contribute to their strict observance. Let's consider the provisions of the legislation establishing the responsibility and sequence of actions of participants in housing relations in terms of metering devices.
The obligation for owners of premises in apartment buildings to provide them with metering devices, as well as the deadline for fulfilling this obligation (until 07/01/2012) are established in Part 6 of Art. 13 of the Law “On Energy Saving...”. According to housing legislation, within the specified period, the owners of the premises of apartment buildings must hold general meetings, at which the owners must make any decisions on the choice of the type of metering device, its cost, the contractor and other conditions. However, there is no administrative liability in the event of failure by the owners of apartment buildings to comply with these requirements. That is why, if the owners do not hold general meetings and do not make decisions at them on the fulfillment of mandatory requirements within the established time frame, further holding of such meetings (after 07/01/2012) is not required.
Responsibility of the management organization under Part 4 of Art. 9.16 of the Code of Administrative Offenses is established by the imperative requirements of parts 1 and 2 of Art. 13 of the Law “On Energy Saving...”, according to which transmitted energy resources are subject to mandatory accounting using metering devices, and payments for them must be carried out using metering devices. Since the management organization provides a utility service, i.e. transfer of communal resources through in-house engineering systems, then the requirements of parts 1 and 2 of Art. The Law “On Energy Saving...” refers specifically to it.
Be that as it may, the responsibility of the person responsible for the maintenance of the apartment building, under Part 4 of Art. 9.16 of the Code of Administrative Offenses is established precisely by this requirement of the Law “On Energy Saving...”. And it was precisely this provision that was not taken into account by the Arbitration Court of the Nizhny Novgorod Region in the case considered above.
Responsibility of the management organization under Part 5 of Art. 9.16 of the Code of Administrative Offenses is established in Part 7 of Art. 12 of the Law “On Energy Saving...”, according to which the person responsible for the maintenance of an apartment building is regularly (at least once a year) obliged to develop and bring to the attention of the owners of premises in the apartment building proposals for measures to save energy and improve energy efficiency, which can be carried out in an apartment building, indicating the costs of their implementation, the amount of expected reduction in energy resources used and the payback period for the proposed measures. In the absence of metering devices, such a proposal must be directed to its installation in accordance with Part 1 of Art. 13 of the Law “On Energy Saving...”.
Obligations arise under both parts of the Code of Administrative Offenses from the moment the Law “On Energy Saving...” comes into force, i.e. its publication on November 27, 2009, and they are established in the Code of Administrative Offenses for an indefinite period . Therefore, starting in 2010, housing inspectors had the right to fine management organizations for failure to provide residents with mandatory proposals aimed at energy saving, and since 2011, for the absence of metering devices in an apartment building. Moreover, it was possible to impose fines on management organizations both before 07/01/2012 and after 01/01/2013 under two articles of the Code of Administrative Offenses at once - simultaneously on an official and a legal entity. That is why the failure of management organizations to fulfill their obligations to equip apartment buildings with metering devices within the established time frame does not relieve them of this responsibility upon the expiration of these deadlines.
However, until July 1, 2012, these sanctions against management organizations were not applied by housing inspectors under various pretexts. There were no necessary clarifications from the federal authorities, primarily the Ministry of Regional Development. Usually, with such legislative innovations, the Ministry of Regional Development sent information letters to the constituent entities of the Russian Federation and monitored the processes, but this time it withdrew. In the regions, no one was in a hurry; they decided to wait for everything to happen—for the residents themselves to start holding general meetings. In practice, the process of equipping apartment buildings with metering devices was disrupted due to the inaction of the federal authorities.
Procedure of the management organization
Until 07/01/2012, despite the fact that sanctions were established for management organizations, practically no meters were installed: they were waiting for mass general meetings of apartment building residents to be held with the full connivance of the federal executive authorities.
In the case of timely application of these articles of the Code of Administrative Offenses, owners of premises in apartment buildings, starting from 2010, had every opportunity to fulfill their responsibilities as follows:
— consider proposals from management organizations (HOAs);
— consider proposals from resource supply organizations, which in 2010 were also required to send their proposals for concluding an agreement for the installation of metering devices;
- compare these proposals and adopt the most acceptable of them at the general meeting;
— develop and adopt at general meetings their own decisions on the installation of metering devices.
However, Part 4 of Art. 9.16 of the Code of Administrative Offenses was never applied at all, but. Part 5 Art. 9.16 The Code of Administrative Offenses began to be applied only in 2013, and then in isolated cases.
With proper fulfillment of the requirements of the law, the person responsible for the maintenance of an apartment building, in the event of the failure of the owners of the premises to hold a general meeting both before 07/01/2012 and after 01/01/2013, is obliged to:
— independently develop a proposal for the installation of metering devices, in which indicate the type of metering device, its cost, installation time, payment procedure and other conditions;
- send this proposal to the owners of the premises of apartment buildings, informing them in the manner established by paragraph “b” of Art. 13 of the Standard for the disclosure of information by organizations operating in the field of management of apartment buildings, approved by Decree of the Government of the Russian Federation of September 23, 2010 No. 731. That is, this proposal must be posted not only on notice boards in an apartment building, but also on the website of the management organization, and if it does not have a website, then on the website of the municipality;
- enter into an agreement with a specialized organization for the installation of metering devices in the event that the owners of the apartment building premises have become familiar with the proposal of the person responsible for the maintenance of the apartment building, but did not hold a general meeting within the time period specified in the proposal and did not make another decision on the choice of a different type of equipment, cost , installation timing, payment procedure, contractor, etc.;
— transfer an agreement with a specialized organization for the installation of metering devices to a settlement center (in the absence of its own subscriber department) for the calculation of payments to owners and payment for work on the installation of metering devices. At the same time, the management organization has the right to independently decide whether to provide an installment plan or a one-time payment for metering devices;
- Ensure installation as payments are received. Installation and commissioning of metering devices;
— start making payments with energy suppliers based on meter readings, regulate heat energy consumption (Part 8 of Article 13 of the Law “On Energy Saving...”), send proposals related to energy saving, concluding energy service contracts and carrying out other energy service activities to owners of apartment buildings .
I would especially like to emphasize that the law does not provide for the provision of a five-year installment plan for persons responsible for the maintenance of an apartment building. Since the provision of installment payment by the Law “On Energy Saving...” is specifically defined only for the case if both the owners of the premises and the person responsible for the maintenance of the apartment building have not fulfilled their obligations, and such an obligation has arisen for the resource supplying organizations in accordance with Part 12 of Art. . 13 of the Law “On Energy Saving...”. Considering that in some municipalities, administrations require management organizations to hold meetings of premises owners and provide installment plans on the terms established for resource providers, such requirements of administrations should be considered as excessive and the creation of administrative barriers. Furthermore, in accordance with Art. 45 of the Housing Code, only the owners of premises can initiate a general meeting: neither the management organization nor energy suppliers have the right to initiate general meetings.
As a last resort, both the owners of the apartment building premises and the person responsible for its maintenance had and have every opportunity to apply for a contract for the installation of metering devices to the resource supplying organization. Moreover, the resource supplying organization does not have the right to refuse to conclude such an agreement, the terms and procedure of which are approved by the Ministry of Energy of Russia and the Government of the Russian Federation (Order of the Ministry of Energy of Russia dated 04/07/2010 No. 149 “On approval of the procedure for concluding and essential terms of the agreement governing the conditions of installation, replacement and ( or) operation of metering devices for used energy resources" and Decree of the Government of the Russian Federation dated February 14, 2012 No. 124 "On approval of the Rules mandatory when a management organization or a homeowners' association or a housing cooperative or other specialized consumer cooperative enters into contracts with resource supply organizations").
If the resource supplying organization is inactive after 07/01/2012 and has not started work on equipping the apartment building with metering devices, then the management organization has the right at any time to notify it that it has independently begun such work as part of its duties.
Accounting device as part of common property
When installing metering devices into common property by managers and resource supply organizations, questions often arise about its status and ownership, as well as about its safety and payment for its maintenance. Let's consider these issues using the example of common house heat meters, although the same is true in relation to common house gas, electricity and water meters. In accordance with clause 6 of the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation on August 13, 2006 No. 491, the composition of the common property includes an intra-house heating system, consisting of risers, heating elements, control and shut-off valves, collective (common building) ) thermal energy metering devices, as well as other equipment located on these networks. Thus, the metering device, by definition, is part of the common property, the composition of which (see clause 1 of the Rules) can be determined by the owners of the premises - in order to fulfill the obligation to maintain it, as well as by government bodies - housing inspections - for control purposes. The latter are obliged to check the presence of metering devices as part of the common property, and in case of their absence, issue instructions to the persons responsible for its maintenance to comply with the mandatory requirements of the law, as well as apply sanctions to them. In the absence of a metering device as part of the common property, the Law “On Energy Saving...” separately establishes obligations to eliminate the violation of mandatory requirements for the composition of common property by replenishing it for the following participants in housing relations: - owners of premises in apartment buildings; — persons responsible for the maintenance of an apartment building; - suppliers of energy resources (in case of failure to fulfill their duties by the owners of the premises of apartment buildings and persons responsible for the maintenance of apartment buildings). The metering device installed as part of the common property by managers or resource supply organizations, in accordance with the above provisions, immediately after signing the acceptance certificate for the work performed, becomes the common property of the owners of the premises of the apartment building, and the owners have an obligation to pay its cost. Since the installation of a metering device increased the composition of the common property, the fee for its maintenance should increase accordingly. In addition to paying for the cost of the metering device itself, the owners of the premises must pay for its maintenance - setup, repairs, verification, etc. In addition, from the moment of signing the acceptance certificate for the work performed on the installation of the metering device, the owners of the premises are responsible for its safety and in the event of its damage or accidental destruction (Article 211 of the Civil Code) are obliged to bear (reimburse) the costs of its restoration (replacement). Thus, the person who installed the home meter is relieved of responsibility for its safety. Housing Code Part 1.1 Art. 161 establishes that the proper maintenance of the common property of the owners of premises in an apartment building must ensure the constant readiness of utilities, metering devices and other equipment, and the person who is responsible for the maintenance and repair of the common property in an apartment building, within the scope of providing these services, is obliged to ensure the condition common property in an apartment building at the level necessary to provide public services of adequate quality. According to subparagraph “d” of clause 10 of the Maintenance Rules, the specified person is obliged to ensure the constant readiness of utilities, metering devices and other equipment included in the common property for the provision of utilities (supply of utility resources) to citizens living in an apartment building, in accordance with Rules for the provision of public services to citizens. In addition, it is obliged, in accordance with subparagraph “k” of clause 11 of the Maintenance Rules, to ensure the installation and commissioning of collective (common house) metering devices for cold and hot water, thermal and electrical energy, natural gas, as well as their proper operation (inspections, maintenance , verification of metering devices, etc.).
Procedure of the resource supplying organization
The key provisions of the Law “On Energy Saving...” in this matter are the imperative requirements prescribed in Parts 1 and 2 of Art. 13, according to which transmitted and consumed energy resources are subject to mandatory metering using metering devices, and payments for them must be carried out using metering devices. Thus, the legislation clearly indicates that a meter must be installed and payments for energy resources must be made based on its readings. Even if the owners of the premises of an apartment building and the persons responsible for its maintenance have not fulfilled their duties. If this is the case, until July 1, 2013, resource supply organizations, in accordance with Part 12 of Art. 13 of the Law “On Energy Saving...” are required to take steps to equip an apartment building with a metering device. At the same time, according to the law, a person who has not fulfilled his duties is obliged to provide access to resource supplying organizations to the installation sites for metering devices used for energy resources and to pay the costs of resource supplying organizations for the installation of these metering devices. These norms do not terminate the obligation of management organizations to take measures to install common house meters for energy resources used (see the decision of the Third Arbitration Court of Appeal dated November 5, 2013 in case No. A33-7879/2013). It is important to note that Art. 12 and 13 of the Law “On Energy Saving...”, the responsibilities for owners of premises in apartment buildings and persons responsible for the maintenance of an apartment building are established separately: according to the text of these articles of the law, the owners of premises in an apartment building are always called “owners” and nothing else, and persons responsible for maintenance of apartment buildings are called “persons”. That is why the person who is obliged to admit and pay the expenses of the resource supplying organization must be understood, first of all, as the management organization as “the person responsible for the maintenance of the apartment building who has not fulfilled its duties.” Attributing this responsibility to the owners of the premises is absurd, since the owners of the premises are many individuals who have transferred their common property to the management of a management organization or HOA. It’s not their business to allow a resource supplying organization into the basement, then somehow collect money on their own and pay its expenses, especially since the procedure for paying the resource supplying organization’s expenses for carrying out actions aimed at installing metering devices is regulated by the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation of August 13, 2006 No. 491, mandatory for “persons responsible for the maintenance of apartment buildings.” That is why it is the management organization that is obliged to allow the resource supplying organization access to the common property of the apartment building, and it is the management organization that is obliged to pay its expenses from the maintenance and repair fees that it receives monthly. Following further the specified part of Art. 13 of the Law “On Energy Saving...”, in case of refusal to pay expenses on a voluntary basis, a person who has not fulfilled the obligation to equip these facilities with meters for energy resources used within the prescribed period must also pay the expenses incurred by these organizations in connection with the need for forced collection. The following provision of the law on energy saving specifically stipulates: “In this case, citizens - owners of premises in apartment buildings who have not fulfilled their duties within the prescribed period, if this required resource supply organizations to take actions to install metering devices, pay in equal shares for five years from the date of their installation expenses of these organizations for the installation of these metering devices, provided that they do not express their intention to pay such expenses at a time or with a shorter installment period.” Clause 38 (1) of the Maintenance Rules specifies the procedure for payment of expenses of resource-supplying organizations by the owners of premises in apartment buildings for different management methods in the case when a metering device was installed by the resource-supplying organization. After 01/01/2013, resource supply organizations have the right to directly issue invoices for the actually installed metering device to the owners of premises, except for cases where such expenses were taken into account as part of the fee for the maintenance and repair of residential premises and (or) as part of the mandatory fees established for members of HOAs, residential complexes payments and (or) contributions. Thus, resource supplying organizations have the opportunity, without entering into debates or litigation with management organizations, to compensate for the costs incurred. Also, clause 38 (1) of the Maintenance Rules applies to cases where, in a building equipped with metering devices, a direct method of managing an apartment building has been chosen, or if the owners of the premises have decided to enter into resource supply agreements directly with resource supply organizations, bypassing the management organization or HOA (housing association). In the case where a metering device in an apartment building was not installed by the resource supplying organization, the procedure for paying the expenses of the resource supplying organization may be different. The fact is that not all resource supplying organizations are able to buy metering devices or attract funds from banks or investors to purchase them. In most cases, these are urban network organizations that are in difficult financial conditions, often in a state close to bankruptcy. The only opportunity for them to fulfill the requirement of the law and pay for metering devices is to issue invoices to the owners of apartment buildings or management organizations, accumulate these funds and pay with them for the services of specialized organizations - suppliers of metering devices and performers of installation work in stages or immediately, depending on receipt money. Despite the fact that the law allows for such actions, resource supply organizations do not dare to go this route. Since there are no explanations from the federal authorities, local administrations, regional authorities, and law enforcement agencies practically do not prevent them from doing this. As stated above, resource supply organizations, in accordance with Part 12 of Art. 13 of the Law “On Energy Saving” are required to take steps to equip an apartment building with metering devices. This law does not define the range of such actions. This can be any action, for example, to raise funds (loans) to finance the installation of metering devices, if it is possible to raise funds. After raising funds and installing metering devices, the resource supplying organization, as part of these actions, issues invoices for payment of its expenses to management organizations and owners of premises. But due to the high risks of non-repayment of borrowed funds, the cost of work and services for residents can be quite high and economically unjustified. If it is not possible to raise funds or it is not economically feasible, the resource supplying organization, within the framework of performing actions prescribed by law, has the right to issue invoices and, having collected money, pay for the installation of metering devices, saving on the cost of interest for banks or the profits of investors. It is this path that best suits the interests of the population. This is what local administrations and regional authorities should now focus on in their work, and not on the search for financial schemes to attract money and investors, for which the population will have to pay. It is on this principle that capital repair schemes work, and this is how the entire economy works in general according to civil law. Why should it be different when installing metering devices? Why are some financial schemes, some investments needed? The investor is the one who creates an investment that generates a profit that should be many times greater than just bank interest. Investors must build houses, factories, roads, transport networks, generation and receive their well-deserved profit from the use of these objects. And to demand that regional authorities find investors who will profit from payments from the population for the mandatory requirements of the law for the installation of metering devices is blasphemous to say the least! But this is precisely the position that both the Ministry of Regional Development of Russia and the State Construction Committee have recently taken, because of whose actions or inaction the process of installing metering devices in apartment buildings across the country has either stopped altogether or has placed a heavy burden on local budgets. I would like to hope that the new Ministry of Construction and Housing and Communal Services will deal with this issue and that government tasks related to creating conditions for energy saving and increasing energy efficiency in the housing sector will not be completely failed.
Responsibility of resource supply organizations
Today, the lack of necessary clarifications from the federal executive authorities has put many energy suppliers in apartment buildings, which are subject to the obligation to install metering devices, as well as regional authorities in a difficult situation. Where can I get money? It is impossible to provide for them in the tariff; introducing increasing coefficients to consumption standards, in fact, fines, has recently become possible, but this is a matter for the distant future; it is not clear whether such a measure will work at all, even if it is introduced. It is also impossible to remain inactive: the requirement to install metering devices is one of the conditions for providing financial support for all programs of the Housing and Communal Services Reform Assistance Fund. Currently, in many regions, prosecutors have carried out inspections that have revealed violations of established legal requirements for equipping apartment buildings with metering devices. Since the responsibility for installing them lies with the resource supplying organizations, the latter prosecutor's office issues orders to eliminate the identified violations, and the materials are transferred to the antimonopoly authorities to bring the perpetrators to administrative responsibility, which occurs under Part 12 of Article 9.16 of the Code of Administrative Offences. At the same time, the responsibility of the resource supplying organization arises not from the moment when it was contacted and refused to install a metering device, but from the moment from which it had to fulfill the requirements established by law (starting from 07/01/2013). And this, for example, has already been proven in all courts in case No. A29-263/2013, which was brilliantly won by the Federal Antimonopoly Service for the Komi Republic against OJSC Komi Thermal Company. Inspections are planned to be carried out on a regular basis not only by the prosecutor's office and the Federal Antimonopoly Service of Russia, but also by the state housing inspection authorities. In particular, it is necessary to deal with numerous cases of drawing up fictitious acts about the lack of technical feasibility of installing metering devices in accordance with the order of the Ministry of Regional Development of Russia dated December 29, 201 No. 627, which approved the criteria for the presence (absence) of the technical feasibility of installing individual, common (apartment) and collective ( communal) metering devices. This order of the Ministry of Regional Development of Russia replaces the technical feasibility of installing metering devices with economic feasibility: there is supposedly no technical feasibility if, in order to install a heat or water metering device, almost a major overhaul of the entire house is required. But such a situation, when there are completely rotten networks in the house, can only happen in emergency houses, and according to the Law “On Energy Saving...” there is no need to install metering devices in such houses. However, taking advantage of this loophole, unscrupulous officials dreaming of federal money for major repairs, and managers of resource supply organizations who do not want to install metering devices, here and there began to draw up fictitious acts in which almost entire cities turn out to be technically unsuitable for metering. accounting. Several such cases are already being investigated, which may result in not only administrative, but also criminal cases. In conclusion, I would like to note that it is not the responsibility of managers and resource-supplying organizations that is the incentive for installing metering devices, but an understanding of the economic need for the transition to energy resource metering and a vision of one’s own prospects. The metering device itself is not needed without a dispatch system. A metering device is economically necessary when it is the primary element of the calculation system. In this case, it allows you to monitor the reliability of measurement results, timely charge bills and collect debts for consumed energy resources, calculate consumer energy consumption balances and justify production and investment programs of resource supply organizations aimed at modernizing municipal infrastructure.
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