Chapter 13. Responsibility for failure to provide or poor quality provision of utility services / You and housing and communal services: how to protect your interests?

From April 6 to January 1, 2021, Russia introduced a moratorium on restricting or suspending utility services in case of incomplete payment. We tell you what administrative liability is provided for management organizations for violating this requirement.

Review of new laws and letters from the Ministry of Construction of the Russian Federation, important for management and homeowners associations
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Chapter 13. Responsibility for failure to provide or poor quality provision of utility services

As the Federal Service for Supervision of Consumer Rights Protection and Human Welfare explained in its letter dated March 11, 2005 No. 0100/1745-05-32, civil legal relations of citizens with organizations (public associations, housing construction, dacha-building cooperatives, partnerships, etc.), if these relations arise in connection with the membership of citizens in these organizations. However, the legislation on the protection of consumer rights regulates relations regarding the provision of paid services by these organizations to citizens (including members of these organizations). So, for example, if the charter of a housing cooperative provides for the obligation of a cooperative to ensure the provision of paid utility services to citizens, then relations arising in connection with the provision of these services are subject to legislation on the protection of consumer rights.

As a general rule , relations regulated by the Law “On Protection of Consumer Rights”

, may arise from paid civil contracts for the purchase of goods, performance of work, provision of services, in particular (in relation to the housing and communal services sector):

– from contracts for the rental of residential premises (including social tenancy) in terms of performing work, providing services to ensure the proper operation of the residential building in which the corresponding residential premises are located, providing or ensuring the provision of necessary utilities to the tenant, carrying out routine repairs of the common property of an apartment building and devices for providing public services;

- from contract agreements (household, construction, maintenance of privatized, as well as other residential premises owned by citizens);

– from an energy supply agreement, which is a type of purchase and sale agreement, when the energy supply organization acts as the seller of the relevant type of energy (electricity, water, gas, heat).

Currently, all citizens living in both privatized and non-privatized apartments in multi-apartment residential buildings are consumers of housing and communal services. Their executor, i.e. a party to legal relations regulated by the relevant provisions of the Civil Code of the Russian Federation, the Housing Code of the Russian Federation, the Law of the Russian Federation “On the Protection of Consumer Rights” and other regulatory documents, in the context of the definition given in clause 3 of the Rules for the provision of utility services to citizens, a legal entity, regardless of its organizational and legal form, as well as an individual entrepreneur, providing utility services, producing or purchasing utility resources and being responsible for maintaining in-house engineering systems, with the use of which utility services are provided to the consumer. The executor may be a management organization, a homeowners' association, a housing construction, residential or other specialized consumer cooperative, and in the case of direct management of an apartment building by the owners of the premises - another organization that produces or acquires utility resources.

In addition, when determining the subject of the corresponding responsibility to the consumer, it is necessary to keep in mind that in certain municipalities a practice has developed in which the actual executor of housing and communal services is a local government body that exercises the functions of a management organization in relation to the relevant municipal housing stock directly through its structural divisions. This practice is unlawful, since it indicates that the government body is combining the functions of an economic entity, which contradicts the relevant provisions of Part 3 of Art. 15 Federal Law of the Russian Federation “On the Protection of Competition” dated July 26, 2006 No. 135-FZ, and in some cases, on a formal basis, may complicate the implementation of consumer rights protection based on the legal norms of the Law on the Protection of Consumer Rights, since this legislative act does not define government bodies at all authorities and local self-government as subjects of legal relations regulated by it.

When assessing the contractual relations actually established in the housing and communal services sector, special attention should be paid to considering the circumstances of disconnecting citizens - consumers from sources of electricity, heat, water, etc. Such actions in practice are usually carried out either as an appropriate “measure of influence” on unscrupulous payers of housing and communal services or are a consequence of non-payment to resource-supplying organizations for the utility services provided by them by performing organizations that ensure the provision of these services to citizens-consumers and are an obligated party in relation to them.

In accordance with paragraph 3 of Art. 541 of the Civil Code of the Russian Federation, a citizen who uses energy for domestic consumption has the right to use it in the quantity he needs, and the rights and freedoms of man and citizen can be limited only by federal law and only to the extent (according to paragraph 3 of Article 55 of the Constitution of the Russian Federation), in what is necessary for the purposes directly defined by this article of the Basic Law of the Russian Federation.

Based on the relevant provisions of paragraph. “a”, “b” clause 49 of the Rules for the provision of utility services to citizens, providing consumers of housing and communal services with adequate heat supply, electricity supply, cold and hot water supply is mandatory for the contractor.

At the same time, according to clause 5 of Art. 4 of the Law on Protection of Consumer Rights and para. “b” clause 49 of the Rules for the provision of utility services to citizens, each consumer has the right to ensure that services related to energy, heat and water supply of the residential premises he occupies meet in quality the mandatory requirements of regulations and standards, sanitary rules and norms and conditions agreement.

In accordance with paragraph 1 of Art. 547 of the Civil Code of the Russian Federation, in the event of non-fulfillment or improper fulfillment of obligations under an energy supply contract, the party that violated the obligation is obliged to compensate for the real damage caused by this (clause 1 of Article 15 of the Civil Code of the Russian Federation).

In the context of the relevant provisions of paragraph 3 of Art. 541, paragraph 2, 3 art. 546 of the Civil Code of the Russian Federation and clause 79 of the Rules for the provision of utility services to citizens, the only basis for a break (termination, restriction) in the supply of specified energy resources to citizens may be the need to carry out planned or urgent work in the energy supply system, as well as natural disasters and emergency situations beyond the control of the contractor and resource supplying enterprises (in particular, a break in the supply, termination or limitation of the supply of energy without the consent of the subscriber and without appropriate warning is allowed if it is necessary to take urgent measures to prevent or eliminate the accident, subject to the immediate notification of the subscriber about this).

At the same time, any provider of housing and communal services is obliged, in accordance with clause 49 of the Rules for the provision of utility services to citizens, to take timely measures to prevent and eliminate violations of the quality of these services, improve their consumer properties and prevent violations of technological processes during their provision.

The general grounds for compensation for harm caused to consumers as a result of defects in goods, work or services, as well as the persons responsible for such harm, the terms of compensation and the grounds for releasing the seller (manufacturer, performer) from relevant liability are determined by Art. 1095–1098 Civil Code of the Russian Federation and Art. 13, 14 of the Law on Protection of Consumer Rights.

In accordance with these standards, damage caused to the life, health or property of a consumer due to design, production or other defects of a product, work or service is subject to compensation by the seller or manufacturer of the product or service provider, regardless of their fault and whether the victim was in a contract with them relationship or not.

The only reason

In this regard, releasing the seller (manufacturer, performer) from the corresponding civil liability for violation of the quality of provision of utility services, in accordance with clause 79 of the Rules for the provision of utility services to citizens, can be the fact of force majeure proven by him.

The legal basis for compensation for moral damage to consumers is the relevant provisions of Art. 151, 1099–1101 Civil Code of the Russian Federation and Art. 15 of the Law on Protection of Consumer Rights.

Since all claims related to appropriate compensation for harm are of a property nature, if they are not satisfied voluntarily, the dispute can only be resolved by a court (Article 11 of the Civil Code of the Russian Federation, paragraph 1 of Article 17 of the Law on the Protection of Consumer Rights). At the same time, the participation of territorial executive authorities in the judicial protection of consumer rights is regulated by Art. 46, 47 Code of Civil Procedure of the Russian Federation and Art. 40 of the Law on Protection of Consumer Rights.

Now in more detail.

Citizens have the right to recalculation if they are provided with utility services of inadequate quality or with interruptions exceeding the established duration. The Rules for the Provision of Public Utilities to Citizens have Appendix No. 1, which clearly states under what conditions fees for utility services are subject to reduction.

During interruptions in the provision of utility services exceeding the established duration, as well as when preventive maintenance is carried out once a year, the payment for utility services in the absence of collective (common house), common (apartment) or individual metering devices is reduced by the amount of the cost of unprovided utilities.

The volume (quantity) of a non-provided utility resource is calculated based on the utility service consumption standard, the number of consumers (for water supply, sewerage, electricity and gas supply) or the total area of residential premises (for heating), as well as the time of non-provision of the utility service.

If the contractor, after concluding the contract, does not promptly begin to provide utility services, the consumer has the right to demand from the contractor compensation for losses incurred and payment of a penalty in accordance with civil law, legislation on the protection of consumer rights and the contract.

What are the consumer's actions in the event of failure to provide utility services or provision of inadequate quality?

It is necessary to immediately notify the contractor’s emergency dispatch service or other service specified by the contractor. This notice may be given in writing or orally.

This message must be registered by the emergency dispatch service. In this case, the consumer is obliged to provide his last name, first name and patronymic, exact address of residence, as well as the type of utility service not provided or the utility service provided is of inadequate quality. The emergency dispatch service employee is obliged to provide the consumer with information about the person who accepted the application (last name, first name and patronymic), the registration number of the application and the time of its receipt.

If the emergency dispatch service employee knows the reasons for this request, he is obliged to immediately inform the consumer about this and make an appropriate note in the application log. This mark is the basis for the contractor to acknowledge the fact of failure to provide utility services or the provision of utility services of inadequate quality.

Otherwise, the emergency dispatch service employee is obliged to agree with the consumer on the exact time and date of establishing the fact of non-provision of utilities or checking the quality of provision of utilities. Based on the results of the inspection, an act on the non-provision of utility services or the provision of inadequate quality is drawn up, which is signed by the consumer (or his representative) and the contractor (or his representative).

The act of non-provision of utility services or provision of utility services of inadequate quality indicates violations of quality parameters, the time and date of the beginning of the non-provision of utility services or the provision of utility services of inadequate quality.

The start date of non-provision of utility services or provision of utility services of inadequate quality is considered to be:

a) the time the consumer submitted an application for the fact to the emergency dispatch service;

b) the time specified in the act, if the contractor identifies the fact of provision of utility services of inadequate quality;

c) the time of the start of the provision of utility services of inadequate quality, recorded by collective (community), common (apartment) or individual metering devices - in the case of recording the provision of utility services of inadequate quality by metering devices.

This act is the basis for recalculating the amount of payment for utility services, as well as for the contractor to pay a penalty for violation of its obligations in the amount established by federal laws and the agreement.

If the contractor or third parties cause damage to the life, health and (or) property of the consumer or persons living together with him, the common property of the owners of premises in an apartment building, the contractor (or his representative) and the consumer (or his representative) draw up and sign an act, in which records the fact of causing such damage. The specified act must be drawn up by the contractor and signed by his authorized representative no later than 12 hours from the moment the consumer contacts the emergency dispatch service. If it is impossible for the consumer (or his representative) to sign the act, it must be signed by two eyewitnesses.

The above acts are drawn up in 2 copies and have equal legal force.

The period of provision of utility services of inadequate quality is considered over:

a) from the date of signing by the consumer (or his representative) of the act on eliminating deficiencies in the provision of utility services;

b) from the moment of resumption of the provision of utility services of adequate quality, recorded by the appropriate metering device.

Found documents on the topic “claim to housing and communal services”

Claim against the Housing and Communal Services Management Company for the provision of utility services of inadequate quality Statements of claim, complaints, petitions, claims → Claim against the Housing and Communal Services Management Company for the provision of utility services of inadequate quality
to: the manager (management company) address: from whom: claim your organization is the managing organization for the house No. located at . in accordance with …
Sample. Information about the work of housing and communal services enterprises. Form No. 22- housing and communal services
Statistical reporting → Sample. Information about the work of housing and communal services enterprises. Form No. 22-zhkkh
…+ information on the work of housing and communal services enterprises for 20 +-+ +-+ present: terms form no. 22- housing and communal services submissions - +-+- approved by the resolution of the 1st enterprise (organization) of the housing and communal services State Statistics Committee of Russia...
Sample. Information on preparing housing and communal services for work in winter conditions. Form No. 1- housing and communal services (winter)
Statistical reporting → Sample. Information on preparing housing and communal services for work in winter conditions. Form No. 1-housing and communal services (winter)
... municipal services to work in winter conditions as of 1 20 +-+ +-+ represent: term form no. 1- housing and communal services (winter) submissions - +-+- approved by Resolution 1. Housing and communal organizations of the State Statistics Committee of Russia of local organizations...
Form claims
Statements of claim, complaints, petitions, claims → Claim form
claim form (see the provision on the claim procedure for resolving disputes, approved by the resolution of the Supreme Council of the Russian Federation dated June 24, 1992...
Claim for short supply of products
Statements of claim, complaints, petitions, claims → Claim for non-delivery of products
...uo;surprise" (name of organization, 150000, Yaroslavl, Ivanova St., address, telephone) 39 claim (in the amount of 300,000 rubles) in accordance with concluded agreement No. 546 dated October 28, 2013 your organization...
Sample dated November 30, 1995 Responses to claim (about satisfaction and refusal)
Statements of claim, complaints, petitions, claims → Sample dated November 30, 1995. Responses to the claim (on satisfaction and refusal)
... z and i (on satisfaction and refusal) name and details to: enterprises: address: "" 20 no. your claim no. from "" 20 o was considered and satisfied in full (partially) in the amount of rubles. the specified amount was transferred to...
Sample. Claim under a contract
Statements of claim, complaints, petitions, claims → Sample. Claim under a contract
(full name, postal address, inn of the business entity to which the claim , title of position and full name of the manager) from (full name, postal address, inn of the business entity...
Sample dated January 31, 1996 Logbook claims and claims brought by the enterprise
Documents of the enterprise's office work → Sample dated January 31, 1996. Journal of claims and claims brought by the enterprise
journal of claims and lawsuits brought by the enterprise +-+ no. original name amount contents-date term date short date contract, source...
Claim under an apartment renovation agreement
Statements of claim, complaints, petitions, claims → Claim under an apartment renovation agreement
...the name of the contractor and his address) from (indicate your last name, first name, patronymic and address) claim under the apartment renovation contract “” in 20, I entered into contract No. for the renovation of an apartment at the address: . cost of repair...
Claim for poor quality of car repair work
Statements of claim, complaints, petitions, claims → Claim for poor quality of car repair work
...elyu (full name of the organization, full address), (full name of the applicant) residing at the address: claim for poor quality work on car repairs "" I entered into an agreement with your organization for r...
Claim for compensation for damage caused
Statements of claim, complaints, petitions, claims → Claim for compensation for damage caused
sample claim for compensation for damage caused to the boss (name of the motor transport enterprise) address...
Claim for compensation for damage caused
Statements of claim, complaints, petitions, claims → Claim for compensation for damage caused
claim for compensation for damage caused form or corner stamp to the head of the sender (name of the transport company)…
Sample. Answer to claim contractor to pay the cost of materials
Statements of claim, complaints, petitions, claims → Sample. Response to the contractor's claim for payment of the cost of materials
...organization (name of organization) ref. no. dated "" 20 (address) response to the complainant, your claim for payment of the cost of materials is subject to rejection, since the use of your own material was not necessary ...
Claim Workshop on eliminating deficiencies in the work performed
Statements of claim, complaints, petitions, claims → Service station claim for elimination of deficiencies in the work performed
to the director of the service station (name, address) from (full name, address) a claim to eliminate deficiencies in the work performed “” 20. I entered into an agreement with your organization for repair...
Claim on payment of a penalty for violation of the contract work schedule
Statements of claim, complaints, petitions, claims → Claim for payment of a penalty for violation of the contract work schedule
sample claim for payment of a penalty for violation of the contract work schedule to the director (chief) (name of organization...

Suspension and limitation of public services for debts

When a consumer does not pay for utilities in full and his debt exceeds two monthly payments according to the standard, the contractor may limit or suspend the provision of utility bills to him (clause 118 of the RF PP No. 354).

You can limit or suspend the provision of a utility service by warning the consumer in advance if there is:

reason - for example, the debt of the owner or carrying out scheduled preventive maintenance (clause 117 of the RF PP No. 354);
technical feasibility.

All services can be suspended, except for heating and cold water supply (clause “c” of clause 119 of RF PP 354).

Suspension of a utility service is a temporary cessation of the supply of a utility resource (clause 114 of the RF PP No. 354). When limiting services, the contractor temporarily reduces the volume of supply of a utility resource, that is, provides it continuously in smaller quantities or according to a daily schedule.

RF PP No. 354 does not explain to what extent utility services can be limited for debt and what schedule to set for the provision of services when introducing restrictions. These details can be outlined in the utility contract. If the contract does not contain these conditions, the contractor resolves such issues independently.

How can management improve payment discipline in conditions of general self-isolation?
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Moratorium on restrictions and suspension of public services from April 6

On April 6, the Government of the Russian Federation published Resolution No. 424 dated April 2, 2020, which suspended until January 1, 2021:

payment and collection of penalties, fines, penalties for late and (or) incomplete payment of payments for residential premises and utilities and contributions for major repairs;
verification of household metering devices;
restriction or suspension of utility services in case of incomplete payment.

Let's look at each point in more detail. The moratorium on the accrual of penalties and fines for late payments for housing and communal services applies to both residents of apartment buildings and municipal buildings who do not fully fulfill their obligations under resource supply contracts.

Until January 1, 2021, the provisions of management agreements for apartment buildings, which establish the right of management companies to collect penalties, fines, and penalties for late and (or) incomplete payment of rent for residential premises, do not apply. The collection of penalties, fines, and penalties in the event of untimely and (or) incomplete payment of payments for residential premises and utilities and contributions for major repairs has also been suspended.

From April 6 to January 1, 2021, individuals can use all household utility metering devices, including those with an expired verification period, without undergoing another verification. Organizations accredited to carry out this work are required to inform applicants about the postponement when submitting an application and post such information on their websites.

During the specified periods, it is impossible to suspend or limit utility services to the consumer if they are not paid in full. Violation of this requirement will result in administrative liability.

Housing and communal services industry and tax benefits: what management companies can count on now
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