Is the resource supplying organization the provider of public services?

It would seem that the question of who is the provider of public services is clear to everyone and not at all complicated. It is logical to assume that the person providing utility services is their executor. Paragraph 7 of clause 2 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by the RF Government of 05/06/2011 N354 (hereinafter referred to as Rules 354), establishes: “the contractor” is a legal entity, regardless of the organizational and legal form or individual entrepreneur providing utility services to consumers.” If the house is managed by a management organization (hereinafter referred to as the MA), then by virtue of Part 2 of Article 162 of the Housing Code of the Russian Federation (and several other norms), it is this MA that provides utilities. If the house is managed by an HOA, then by virtue of Part 1 of Article 135 of the Housing Code of the Russian Federation (and several other norms), it is the HOA that provides utilities. Thus, the provider of utility services is either the management company or the homeowners association. However, a number of amendments made to the housing legislation of the Russian Federation make the situation not so clear-cut .

The procedure for transferring a house to direct payments with a resource supply organization

Who is responsible for the quality of services? Who should I send meter readings to?

On April 3, 2021, changes to the Housing Code of the Russian Federation, adopted by the federal law on direct agreements between consumers and suppliers of utility services in apartment buildings, came into force. The Housing Code was supplemented by Art. 157.2, which is called that

“Provision of public services by the resource supplying organization, the Regional Operator for the Management of Municipal Solid Waste.”

Apartment owners were given the opportunity to conclude Agreements for cold and hot water supply, sewerage, electricity, gas supply, heating and garbage collection services directly with resource providers. Without the mediation of management companies, homeowners associations and housing cooperatives.

The instructions from the Center for the Protection of Citizens' Rights "Direct Contracts in Housing and Public Utilities" will tell you what the advantage of direct Contracts with resource providers is, how to switch to such an Contract, and who is responsible for the quality of the services provided.

Activities of the resource supply organization

The resource supply organization provides management companies or residents of apartment buildings with various utility resources. In addition, such an organization is also a transport company that carries out annual maintenance of apartment buildings and transportation of various household waste.

Delivery of services

In accordance with paragraph “c” of paragraph 9 of the Rules of Decree of the Government of the Russian Federation No. 354 of May 06, 2011, when servicing a RSO house, the following utility resources are supplied to an apartment building:

• hot and cold water supply (find out about the problems and standards of water supply in the Russian Federation here);
• power supply (the reasons for power outages and complaints are described in this material);
• gas supply;
• drainage;
• heating (read about heat supply rules here).

Attention! The above utility resources are supplied to the apartment building only after the management company or the apartment building residents have drawn up a separate resource supply agreement with the RSO.

Transportation and service

RSO in the housing and communal services sector is also an organization that delivers various elements of utility resources to a specific destination. In this situation, the resource supplying organization is engaged in the following activities:

• ridding apartments of various harmful animals (for example, mice) and insects (in particular, cockroaches or ants);
• disposal of solid and other household waste;
• installation of television antennas;
• provision of street lighting in adjacent areas.

As a result, the resource supplying organization provides the population with a wide range of services.

From whom I take it, I pay him

In most regions, management companies and homeowners' associations issue citizens a single payment bill, where, in addition to payments for the maintenance of common property, owners are calculated payments for consumed electricity, gas, water and heating. Of course, neither the management company, nor the homeowners' association or housing cooperative are suppliers of gas or electricity. These are just intermediaries in paying for consumed utilities.

According to the Ministry of Construction of the Russian Federation, about 40% of debts in the housing and communal services sector are the debt of management companies to resource suppliers. That is, citizens pay, but the funds do not reach resource officers.

Direct settlements with suppliers will allow management companies to withdraw a significant amount of funds that do not belong to them from circulation. As a result, management companies that are not interested in managing a house, but only in the opportunity to “warm their hands” on the turnover of funds, will leave the market.

Experts believe that resource supply organizations that begin to receive the full volume of payments on a timely basis will be able to allocate more funds for the reconstruction and modernization of networks. Which will ultimately affect the quality of the services provided. And it’s also easier for the consumer: how much water, gas or electricity was used – that’s what he pays for. And no one will disconnect you from the resource for imaginary debts. So, the changes came into force in 2018.

Below we will consider the procedure for transferring an apartment building to enter into direct contracts with the RSO.

When using this material, reference to the source is required © “Chairman of the HOA”

Published in the magazine “Chairman of the HOA” No. 12(110) 2016

Judicial practice shows that RSOs universally ignore the requirements of the law when calculating funds for the utility resource consumed by an apartment building, and management organizations (hereinafter referred to as MA), due to a lack of professionalism, do not have the opportunity to check the correctness of the accrual and prove the illegality of the accrual. But don’t rush to give up if you receive a claim from RSO.

Legal basis for interaction between RSO and management organizations

By virtue of the provisions of Art. 161 of the Housing Code of the Russian Federation, clause 8 and clause 9 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by the RF PP dated 05/06/2011 N354, the management company/homeowners association/housing cooperative are the provider of utility services (hereinafter referred to as the CU) and are obliged purchase thermal energy and hot water from RSO in order to provide utilities to citizens.

Federal Law “On Heat Supply” dated July 27, 2010 No. 190-FZ regulates the relationship between the resource supplier and the resource consumer.

However, the procedure for determining the amount of energy in housing legislation differs significantly from the procedure provided for by general civil legislation.

Article 4 of the Federal Law “On the entry into force of the Housing Code of the Russian Federation” establishes the unconditional priority of the norms of housing legislation over the norms of other laws and other legal acts regulating housing relations.

RSO often refer to paragraph 1 of Art. 544 of the Civil Code of the Russian Federation, which provides for the possibility of establishing a calculation method for the volume of energy consumed by a separate law, legal acts or agreement of the parties. However, housing legislation, which has priority in relations between RSO and UU, does not allow this possibility - the amount of energy consumed is calculated either according to the standard or according to the meter

When making payments for the supplied resource, RSOs are required to take into account that in cases provided for by law, the Government of the Russian Federation, as well as the federal executive authorities authorized by it, may issue rules binding on the parties when concluding and executing public contracts and settling mutual settlements (Article 426 Civil Code of the Russian Federation).

Such rules are the following regulations:

1. Federal Law of December 7, 2011 No. 416-FZ “On water supply and sanitation”;
2. RF PP dated February 14, 2012 No. 124 “On the rules mandatory when concluding contracts for the supply of utility resources for the purposes of providing utility services”;
3. RF PP dated July 29, 2013 No. 645 “On approval of standard contracts in the field of cold water supply and sanitation”;
4. RF PP dated July 29, 2013 No. 643 “On approval of standard contracts in the field of hot water supply”;
5. “Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings”, approved by the RF Government of 05/06/2011 No. 354;
6. RF PP dated August 8, 2012 No. 808 “On the organization of heat supply in the Russian Federation and on amendments to certain acts of the Government of the Russian Federation”;
7. “Rules for establishing and determining standards for the consumption of utility services”, approved by the RF Government of May 23, 2006 No. 306;
8. “Requirements for making payments for resources necessary for the provision of public services”, approved by the RF Government of March 28, 2012 No. 253;
9. RF PP dated June 29, 2021 No. 603 “On amendments to certain acts of the Government of the Russian Federation on the provision of utility services”;
10. RF PP dated August 13, 2006 No. 491 “On approval of the Rules for the maintenance of common property in apartment buildings and the Rules for changing the amount of fees for the maintenance and repair of residential premises in the event of the provision of services and performance of work on the management, maintenance and repair of common property in apartment buildings of inadequate quality and (or) with interruptions exceeding the established duration.”

Case law and legal framework to consider

As judicial practice shows, RSO everywhere ignores the requirements of the law, and management organizations, due to a lack of professionalism, do not have the opportunity to check the correctness of the accrual and prove the illegality of the accrual.

Decisions of the Arbitration Courts of recent years (cases No. A40-97448/15, A40-154803/2013, A40-103676/2013, A40-181013/2014, A40-65794/2014, A40-119898/2014) confirm the illegality of the amounts of debts collected and RSO charges issued to the MA.

Arbitration courts of higher instances have established that RSO often, without legal grounds, calculate the volume of hot water based on the consumption standard in residential premises where individual metering devices are installed, which contradicts the provisions of Art. 157 of the Housing Code of the Russian Federation, Rules for the provision of utility services to citizens, approved by the RF GD dated May 23, 2006 No. 307 (hereinafter referred to as the RF GD No. 307) and the Rules mandatory when concluding agreements for the supply of utilities for the purpose of providing utility services, approved by the RF GD dated February 14, 2012 No. 124 (hereinafter referred to as RF PP No. 124).

Calculation according to the standard is applicable only to residential buildings that are not equipped with metering devices.

In addition, the Arbitration Courts of higher instances have established that during the trial, RSOs change the methodology for calculating accruals for services, while referring to the acts of work performed, signed by the parties, submitted to the case materials by the RSO. RSO insists that such acts can serve as confirmation of the supplied volumes of energy resources.

By virtue of clause 2 of the RF PP No. 124, these Rules apply to relations arising from energy supply contracts concluded before the entry into force of these Rules by management organizations with the RNO, in terms of the rights and obligations that arise after the entry into force of these Rules. Subclause “d” of clause 18 of RF PP No. 124 in the energy supply contract provides for the obligations of the parties to take and transmit readings from metering devices and (or) other information used to determine the volume of resources supplied under the contract. Unless otherwise established by agreement of the parties, the contractor provides the RSO with the relevant information before the 1st day of the month following the settlement month.

Arbitration courts of higher instances universally reject the arguments of the RSO that the management organization did not fulfill the obligation to transfer information about the readings of metering devices to the supplier, since this norm is only of an organizational nature and does not provide for the consequences of violating the deadline for providing the readings of individual metering devices to the RSO.

And if settlements between the RSO and the MA are carried out through an agent (settlement center, RC), then, under the terms of the quadripartite agreement on the organization of settlements on the basis of a single payment document, the RSO must actually receive readings from individual metering devices (IMU) from the RC on a monthly basis.

Arbitration courts of higher instances in their decisions emphasize that untimely provision of evidence to the IPU cannot:

— serve as a basis for refusal to recalculate the volume of services provided in accordance with the indications of the IPU;

- is not a basis for determining this volume in any other way;

- does not constitute a basis for refusal to recalculate its cost if the subscriber subsequently provides reliable accounting information within a reasonable period of time.

Based on the systemic interpretation of Art. 544 Civil Code of the Russian Federation, clause 1, art. 19, paragraph 2, art. 13 of the Law “On Energy Saving” No. 261-FZ, paragraphs. “c” clause 21 of the RF PP No. 124, the communal resource actually supplied to the apartment building, not equipped with a common house metering device, is defined as the total volume recorded by apartment metering devices and the standard for apartments where such devices are not available. From the literal interpretation of paragraphs. “c” of clause 21 of the RF PP No. 124 it follows that for the use of IPU readings, the fact of their presence is sufficient. This norm does not contain reference to the IPU readings transmitted by the RSO.

When making settlements with the MA through an agent, RSO everywhere freely disposes of payments received through a transit account, offsetting them for another earlier period, different from the payment period specified by the consumer of services. At the same time, RSO does not provide evidence that it previously notified the MA about the ongoing offsets. At the same time, the management did not change the purpose of payments and did not agree to credit payments to the debt; the opposite does not follow from the case materials.

Such actions are recognized by higher courts as unlawful. Neither the plaintiff, nor the defendant, nor the distribution center, nor the bank has the right to independently change the purpose of payment, which must correspond to the payment period specified in the payment documents of the population.

In accordance with clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims”, in order to terminate an obligation by offsetting for a different period, an application for such offset must be received by the relevant party.

RSO's references to the fact that the MA, when signing invoices and delivery certificates, should have known about the offsets being carried out, were recognized by the courts as untenable, since these documents confirm the volume of supply of the resource before recalculation. In addition, these documents are not related to monetary settlements carried out by the parties.

Based on the systematic interpretation of the provisions of the Civil Code of the Russian Federation and Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65, when making a set-off, the creditor is obliged to notify the debtor about this within the three-year limitation period.

RSOs quite often offset payments received from consumers during periods that are beyond three years (the statute of limitations).

According to clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65, an obligation cannot be terminated by offsetting a counter-similar claim if, at the request of the other party, the claim is subject to a statute of limitations and this period has expired (Article 411 of the Civil Code of the Russian Federation).

Under such circumstances, RSO's actions to set off claims for which the statute of limitations has expired is an abuse of the right to set off.

According to the basic principle of calculations by CU performers for utility resources, namely, taking into account the fact that the CU does not have an independent economic interest different from the interests of citizen-consumers, its obligations to organizations supplying the relevant resources should not be greater than in the case of these organizations concluding direct contracts with the population (see (Decision of the Supreme Court No. 305-ES15-7767 dated November 2, 2015, Determination of the Supreme Court No. 65-PEK16 dated 04.04.2016, Determination of the Supreme Court Case No. 305-ES16-3833 dated 18.08 .2016).The content of this principle follows from the essence of economic relations, since the only source for paying RSO bills for the corresponding utility resource are payments from the population for the corresponding utility bill. The utility contractor does not have the opportunity to pay more money than accrued to consumer citizens.

According to Art. 544 of the Civil Code of the Russian Federation, payment for energy is made for the amount of energy actually received by the subscriber in accordance with energy accounting data, unless otherwise provided by law, other legal acts or agreement of the parties. In this case, the procedure for payments for energy is determined by law, other legal acts or agreement of the parties.

Separately about the odds 12/7

Recently, in Moscow, cases of recalculation for supplied heat energy from PJSC "MOEK" to the management company for early periods have become more frequent.

For example, PJSC MOEK did not issue additional or adjustment invoices to housing cooperatives (Case No. A40-154803/2013), but at the same time, RSO recalculated for a long period using a coefficient of 12/7, referring to the resolution of the Moscow Government dated July 14 .2015 No. 435-PP.

The assertion of PJSC "MOEK" about the legality of using the coefficient 12/7 in the calculation until 07/15/16 is universally rejected by Arbitration Courts of all instances, since the Moscow Government Resolution No. 435-PP dated 07/14/2015, on which the legal position of RSO is based, has come into force force after controversial periods.

Six Moscow homeowners' associations/housing cooperatives appealed the Moscow Government's resolution No. 435-PP dated July 14, 2015. On December 17, 2015, the Moscow City Court considered administrative case No. Za-745/2015 in open court. Clause 2 of the said resolution (on the extension of its validity to the period preceding the day of its entry into force) was declared invalid. The decision of the Moscow City Court dated December 17, 2015 No. Za-745/2015 was left unchanged by the Resolution of the Supreme Court of the Russian Federation dated April 24, 2016.

The illegality of applying the Moscow Government Resolution No. 435-PP dated July 14, 2015 in earlier periods is confirmed by the Ruling of the Supreme Court of the Russian Federation No. 305-ES16-10525 dated August 18, 2016 and numerous Resolutions of the Arbitration Court of the Moscow District.

The Housing Inspectorate has no right to interfere in the relationship between the RSO and the UO

Recently, RSOs have increasingly begun to use administrative resources, involving housing supervision authorities to collect debt for the supplied utility resource. Housing supervision authorities issue instructions to the management authority, which oblige the management organization to repay the debt for the “hot water supply” and “central heating” utilities.

Do not rush to comply with this instruction, since it is not based on the law. Proof of this is the Decision of the Moscow Arbitration Court (case No. A40-85918/2016), which entered into legal force. The Moscow Arbitration Court invalidated the order of the State Property Committee of Moscow regarding the MA. The Ninth Arbitration Court of Appeal, leaving this decision unchanged, found that the relations that arose between the management company and PJSC "MOEK" regarding payment for utilities under a heat supply agreement are of a civil nature and have other procedural grounds and actions for resolving issues regarding debt payment .

Another example is case No. A40-196837/2016. The court came to the conclusion that the housing inspectorate, when issuing the controversial order, went beyond the powers granted to the supervisory authority. (Regulations on the State Housing Inspectorate of Moscow, approved by Decree of the Moscow Government of July 26, 2011 No. 336-PP). The body exercising the functions of state housing supervision does not have the right to interfere in economic activities and give instructions to participants in civil transactions on how they need to make payments.

PS This article provides only a few examples of the relationship between RSO and UO. Concluding this article, the author draws the attention of management authorities: do not rush to give up if the claim is from the RSO, but hurry to find a professional, a professional who will help you understand the legality of the claims presented and, if necessary, represent your interests in the courts. When concluding an agreement to represent your interests in court, check with the representative whether he has handled similar cases in the Arbitration Court and study his judicial practice.

Olga PERMINOVA,

independent expert in the field of housing and communal services

How to initiate the procedure for switching to a direct contract with RSO

The initiator can be both the owners and the resource supplying organization

If the transition to direct payments is initiated by the owners of apartment buildings

To switch to direct contracts with RSO, a decision of the general meeting of owners (GMS) is required. The decision is made by a simple majority of votes. That is, the general meeting is considered competent to make decisions if owners with more than 50% of the total number of votes take part in it.

In this case, the decision on the issue is considered adopted if the majority of owners from among the persons participating in the general meeting vote “for”.

In order to determine the moment of concluding a direct Agreement, the agenda of the general meeting and the Minutes of the General Meeting must indicate the date from which the owners intend to conclude an agreement with resource supply organizations. Since the Agreement is considered concluded with all owners simultaneously from the date determined in the decision of the general meeting of owners.

A copy of the Minutes of the meeting is sent by the initiator to the relevant resource supply organizations no later than 10 days after the general meeting of owners. The initiator of the meeting must provide the originals of the Protocol and decisions within the same period to the organization managing the apartment building. And if the apartment building is managed by the HOA - in the GZHI.

There is no requirement to conclude an Agreement with resource providers in writing. At the same time, the legislation provides for the possibility of postponing the moment of concluding the Agreement for a period of no more than three calendar months at the initiative of the resource supplying organization.

The resource supplying organization notifies the initiator of the general meeting of owners of such a decision no later than five working days from the date of receipt of copies of the decision and the Minutes of the general meeting of owners of the premises. Throughout this period, the organization managing the house is obliged to calculate payments for utilities to residents.

It is also necessary to take into account that the transition to a direct Agreement entails a change in the Management Agreement with the management organization. We are talking about eliminating the functions of collecting utility bills and transferring these functions from the management company to the RSO.

In order to provide methodological assistance to owners, Goszhilnadzor specialists have developed a sample Protocol of the general meeting on the transition to direct contracts with resource supply organizations, which is freely available on the Internet and can be used by owners of premises during general meetings.

If the transition to direct payments is initiated by the resource specialist

The resource provider has the right to refuse the Agreement with the management company and demand direct contracts with the owners only if the management company has a debt to the resource provider for payment for the supply of the resource within two months. The debt must be recognized either by the Criminal Code itself or established by the court.

If the management company repays the debt before the court decision comes into force, then the resource provider loses the right to terminate the Agreement. Upon termination of the Agreement, the resource supplying organization is obliged to notify both the management organization and the owners of the premises in the apartment building.

Information should be posted on house notice boards and published in the local newspaper. At the same time, the resource supplying organization enters into a direct Agreement with the owners and tenants of the premises in the apartment building.

Drawing up an agreement directly with RSO

Currently, the Housing Code provides for the opportunity for apartment owners to draw up an agreement directly with the organization supplying resources.

This applies to the following situations:

• if the citizen lives in a private house;
• when at a general meeting the apartment owners voted to choose such a management method;
• if the homeowners association or management company has been in debt for 3 months.

When the listed situations occur, the citizen has the right to form a direct agreement with the RSO. This method provides certain positive aspects for the apartment owner.

Pros and cons of working with RSO

Disclosure of information on RSO assumes that before concluding an agreement with this organization, a citizen needs to evaluate the pros and cons.

Positive aspects include:

1. there will be no need to organize many workplaces for employees of the resource supply company;
2. responsibility is not established for actions or inactions committed by unscrupulous neighbors who do not pay for housing and communal services;
3. You can hire contractors for a short time to carry out certain work that is associated with restoring the condition of the home. This helps save the company money.

You also need to understand that there are also negative aspects that occur in connection with the execution of relevant agreements with resource supply companies. In particular, if there is a conflict situation between the residents of an apartment building , then the result may be that the building will undergo high-quality repairs and effective management.

There is a possibility of inconsistent payment for RSO services. The organization does not have the opportunity to carry out major repairs of the house using funds received from the Housing and Communal Services Assistance Fund.

The table reflects aspects of interaction with the RSO:

Therefore, all the listed points are initially assessed, and only after that an agreement is drawn up.

Pros and cons of direct payments

Direct contracts can be considered more profitable for several reasons:

• the risks of bankruptcies of management companies are reduced due to a decrease in the number of possible creditors;
• if the service is of poor quality, then the consumer can refuse to pay for it by notifying the resource officer; this will not affect other services and payments;
• in case of debt, the resource provider has the right to limit this particular service, and not as it was before - at the discretion of the management company.

The only inconvenience is the increase in the number of receipts and, possibly, different places for paying these bills.

New responsibilities of management companies during the transition of apartment buildings to direct contracts

On July 31, 2021, Decree of the Government of the Russian Federation dated July 13, 2019 No. 897-PP came into force, which regulates the relationship between management and resource supply organizations. It concerns residents of houses where water, electricity, heat and gas are supplied to the owners’ apartments under a direct agreement with the resource supplier, without the participation of the management organization.

Resolution No. 897-PP performs the following tasks:

• approves the form of a standard Agreement between the management company and the RSO;
• regulates the timing and composition of information that the management company must transfer to the RSO after concluding a direct Agreement;
• clarifies the rules for the exchange of readings of individual metering devices between the management company and the RSO;
• prescribes the rules for receiving complaints about the quality of public services and requests for recalculation of fees for poor-quality services;
• fixes the rules for the relationship between the management company and the Regulator for the management of solid waste when the owners enter into a direct Agreement (which is relevant after the new waste reform);
• makes clarifications and additions to the rights and obligations of public service providers;
• introduces a ban on advertising on payment documents.

RSO is...

Here's how the letter combination can be deciphered, depending on the context:

• Regime-secret department (organ).
• District agricultural association.
• Raid rescue squad.
• Radio identification system.
• Repair and construction organization.
• Mercury containing waste.
• Registration and statistical department.
• Russian insurance company.
• Reconstructive hearing-improving surgery.
• Republic of Seychelles.
• Special processing company.
• Region of special processing.
• Operator workstation.
• Regional construction association.
• Republic of North Ossetia.
• "Russian assessment service".
• "Russian Construction Olympus" (award).
• Radar rescue transponder.
• Reactive oligomer.
• Ramensky scout troop.
• District student team.
• Working standard sample.

However, most often they mean that RSO is:

• Resource supply organizations.
• Russian student groups.
• Regional education system.

We will look at these values ​​in more detail.

What will the management company be responsible for now?

The main thing is that the management organization is still responsible for the maintenance of all intra-house networks. Also, the management company is always responsible for receiving complaints from residents and the quality of public services.

But now, since under direct contracts with RSO, services are supplied to residents directly by resource supply organizations, these organizations must have all the data about the owners and the premises they own. Which makes housing offices responsible for transferring an impressive amount of such information to the RSO, as well as for its timely updating.

In addition, the management organization under a direct agreement between owners and suppliers of utility resources must:

• enter into agreements for the purchase of resources for the maintenance of common property (that is, for all common and non-residential premises: attics, basements, entrances, etc.);
• carry out maintenance of all in-house engineering systems;
• receive consumer complaints about the quality of public services, as well as organize and conduct, together with the RSO, inspections on such complaints, draw up inspection reports and record damage caused to the property and/or health of residents of the house due to inadequate quality of services;
• control the quality of communal resources and the continuity of their supply to the boundaries between intra-house and centralized networks;
• install and put into operation common house metering devices (CDMU) within three months from the moment when the owners at the general meeting decided to include the costs of such work in the fee for maintaining the residential premises.

RSO is an important link in the utility system

The management of business affairs in the apartment building is carried out by the management company or the homeowners' association (HOA). To organize full-fledged accommodation, these structures enter into agreements for the provision of resource supply services .

According to the provisions of the Government of the Russian Federation No. 354 “On the provision of utility services in apartment buildings,” a resource supplying organization can be a legal entity or entrepreneur that is engaged in the production or acquisition of utility resources and their sale to the consumer. The status of a supplying organization obliges RSO to deliver the resource to consumption facilities

A resource-saving company is one of the key links in the entire utility system. In fact, without resource supply organizations, high-quality execution of public services is impossible.

Scope of activity of the resource supply organization

RSOs are responsible for transferring the CD to consumers. Their responsibilities include transportation and maintenance of transport communications. Their competence includes the provision of solid fuel if centralized networks are not connected to the house. In this case, it will be necessary to provide services for the supply of electricity, cold water, and gas in volumes according to established standards, with a reserve that requires creating conditions for temporary storage.

RSOs are commercial organizations. The ever-growing demand for CDs allows them to constantly develop. Naturally, development is aimed at generating additional income. Reform in the housing and communal services system is aimed at improving the underdeveloped sectors of the public utilities sector. Against this background, resource supply companies began to develop new types of activities, usually adjacent to their main areas. Today they can provide not only resources, but also provide certain types of services for apartment buildings.

Types of resources supplied by RSO

The suppliers that ensure the life of the apartment complex can be:

• gas supply organizations that provide public services for gas supply;
• companies involved in electricity supply, including those with the status of a guaranteeing electricity supplier;
• water supply and sanitation enterprises, which may include guaranteeing organizations appointed by local governments;
• organizations that organize the processes of hot water supply and heating of residential premises during the cold season.

Additional list of services includes:

• installation of metering devices and their maintenance;

• carrying out disinfestation against pests and rodents;
• removal and disposal of solid household waste;
• wiring of Internet cable, video surveillance systems, fire alarms, intercoms and television antennas;
• lighting of the local area with lighting devices.

The rules for the provision of utility services are regulated by the legislation of the Russian Federation.

What responsibilities does the RSO have the right to delegate to the company manager?

The resolution made management organizations obligated to provide RSO employees with access to the common property of an apartment building in the event of a resource limitation for persistent defaulters. Many homes have difficulty with this. For example, it is quite difficult to get into the basement of an average apartment building without a management officer.

However, now, by agreement, the resource manager can authorize the management organization to limit or suspend the supply of resources to debtors. For this purpose, an agreement is concluded between the management company and the RSO.

What other rights can a resource officer transfer to a management company:

• take readings from individual metering devices (IMU) installed outside residential premises and check their condition at least once every six months (clause “e(1)”, clause 31 of RF PP No. 354);
• check the status of the IPU at the request of the consumer within a period not exceeding 10 working days from the date of his application (clause “e(2)”, clause 31 of the RF PP No. 354).

At the same time, the RSO and the Registrar cannot do all this unilaterally. This also requires appropriate agreements.

It is important to know! If part of the responsibilities that the RSO received during the transition to a direct Agreement was transferred to the management company, then the resource provider/Regulator is obliged to inform consumers about this. To do this, relevant information must be posted on information stands in the entrances of apartment buildings and on notice boards in the offices of the RSO.

Where can I now transfer meter readings to the management company or RSO?

The responsibilities of management organizations when owners switch to direct contracts now include a requirement to transfer readings from common house and individual metering devices to the RSO. After concluding a direct Agreement, residents must provide meter readings to the utility service provider, that is, RSO.

However, many citizens send information to their Criminal Code in the old fashioned way. If this happens, that is, the owners/tenants of residential premises in the house transferred the readings of water or electricity meters to the management company, it is obliged to collect the received data and send them to the RSO no later than the 26th day of the current month.

Within the same time frame, the management company is obliged to provide the RSO with readings from a common house resource meter, if one is installed in the house. The management organization must take such readings from the 23rd to the 25th of the current month.

The entire procedure for providing data must be enshrined in the Agreement between the management company and the RSO on the supply of utility resources for the maintenance of the common property of the house. The resource provider is also obliged to notify the management company about current meter readings. The obligation of such interchange, prescribed in this Resolution, will help to avoid errors in accruals. By receiving information from the resource supplying organization, the management company, in turn, will be able to control the calculation of fees for this service.

Responsibility of RSO for settlements

According to current legislation, the utility service provider is directly responsible for all violations. The amount of penalties is 50% of the amount of the error. That is, when the RSO begins to assume the role of executor, it is also responsible for paying the fine. If the calculation is incorrect, a statement is written to the contractor. If there is no response, you must contact ROSPOTREBNADZOR, the court, or the prosecutor's office. Such methods help improve the quality characteristics of corporate governance and increase the transparency of settlement transactions.

How and what data about the owners of the management company will be transferred to RSO

When a direct Agreement for the supply of utilities is concluded between the owners of the premises and the RSO, the organization managing the house ceases to be the provider of utilities. RSO receives this status under a direct Agreement.

At the same time, she needs to receive from the management organization personal data of owners and tenants of residential premises for accruals and issuance of payment documents. The housing office must transmit this data, and without asking the resident’s consent.

The composition of the information that the management company must transfer to the new provider of utility services, prior to RF PP No. 897, was determined in accordance with clause 69 of PP No. 354. This paragraph lists the information that the service provider is required to indicate in payment documents.

Information about the owners contains: last name, first name and patronymic, date and place of birth, details of an identity document, telephone number and email address if the owner or tenant is an individual; name, place of state registration and contact telephone number of the owner, if he is a legal entity.

Information about residential premises in an apartment building contains: address, area and number of residents for each of these premises, area of ​​common property, as well as details of documents certifying ownership of the premises with the provision of copies if available.

Information about metering devices contains: date and place of installation, verification dates, sealing date, readings of such metering devices for the last 12 months.

The resource officer and the Registrar should also have the following information at their disposal:

• about the presence/absence of the technical ability to install the IPU with the attachment of inspection reports;
• on subsidies for utility bills for the owner or user of residential premises;
• about the premises where restrictions have been introduced or the supply of utility resources has been suspended, and about the elimination of the reasons for the application of such measures as of the date of transfer of information;
• about recalculations for the last 12 months with the provision of copies of documents confirming the consumer’s right to recalculation.

It is important to know! Under a direct Agreement, the management organization must transfer a similar list of information to the Regional Operator for MSW Management.

Management company or HOA and RSO

Most citizens mistakenly believe that a RSO and a management company (MC) are one and the same. But can a resource supplying organization be a management company? Of course he can't.

The management company is an intermediary that ensures the organization of cooperation between residents and the RSO.

Although the law does not directly prohibit the provision of services for supplying management companies with resources, in practice they limit themselves from this type of activity. Because for the most part, large capital investments are needed to carry out the activities of RSO.

Management Company - utility service provider

The intermediary role of the management company is to perform the functions of executing public services.

In this regard, the management company acts as a provider of utility services, both to residents and to the RSO:

1. In the first case, the responsibility lies in the timely and continuous supply of resources.
2. Responsibility to the RSO is to pay for the supplied resources on time.

Thus, two different contractual relations arise for the same matter. On the one hand, the management company enters into a service agreement with residents of apartment buildings, and on the other, with the RSO.

The agency agreement between the HOA and the resource supplying organization has approximately the same goal.

Resolution No. 124

The entire procedure for the formation of such a legal relationship is regulated in sufficient detail by Resolution 124 of the Government of the Russian Federation for management companies. This legal regulation contains the rules for concluding an agreement, the time frame within which they must be concluded and the basic requirements for the content of the agreement.

The agreement between the resource supplying organization and the management company must fully comply with the requirements of the specified regulatory legal acts.

Sample resource supply agreement with a management company

The agreement for the supply of resources concluded between residents and the contractor contains the rights and obligations of the parties. For its part, the management company undertakes to ensure subcontracted supply of resources, on the other hand, residents undertake to pay utility bills on time.

The law requires that this agreement be drawn up in a certain order.

Debts of management companies to resource supply organizations

In cases where the management company acts as the executor of utility services, all responsibility for funds not paid on time to the RSO falls on it. RSO does not have the right to directly demand debt from resource consumers when there is no direct agreement between them. And with the management company, the calculation of RSO is not for each individual consumer, but in general for the resources consumed by one or another house.

But the resource supply organization cannot cut off the entire house from supply; for this reason, the management company must collect from specific debtors. If this does not happen, then the debt is paid at the expense of the management company. This is how debt to RSO is formed, which often leads to bankruptcy of the management company.

If the management company does not take measures to collect the debts of the owners of the premises, then bankruptcy will occur very quickly, because there are usually more than one or two such consumers.

In order to ensure its interests, the management company can:

• disconnect the debtor from the local network;
• go to court.

However, the measures taken by the management company must be within the framework of the agreement concluded between it and the residents.

How to transfer the debts of a management company to an agent

The agent in this case is the manager who carries out transactions on the current account of the residents of the apartment building. Such accounts are created upon concluding an agreement with the management company and are usually located in Sberbank.

Since the funds actually belong to the residents, and not the management company, the agent does not always pay the debts of this organization. After all, all current settlements with RSO must be carried out directly on the dates of the month specified in the contract. All residual funds, in addition to the required remuneration of the management company, remain in the specified account, without the right of the management company to dispose of them, except under the terms of the agreement.

In the event of bankruptcy of the management company, collection of its debts cannot be applied to this account.

This is done in order to protect the interests of residents. After the bankruptcy of a management company, another management company may take its place or a homeowners association may be formed, which will become the new manager.

The possibility of transferring the debts of the management company to the resource supplying organization may be provided for in the agreement concluded with the agent. Of course, this happens with the consent of the residents. If there was no such clause in the agreement, then the agent has the right to refuse to pay the debts of the management company. The court also does not have the right to oblige the agent to answer for the obligations of the management company.

Methods for restructuring the debts of a management company

Legislation does not provide for ways to restructure the debt of management companies to resource supply organizations. However, the complete lack of resource supply and the bankruptcy of the management company are not beneficial to either party or the residents. So RSOs often resort to such a method as concluding an agreement to restructure the debt of the management company.

Restructuring implies the provision of a deferment or installment plan in the payment of debts without stopping the supply of resources. This situation is beneficial for both the RSO and the management company. In addition, the legitimate interests of residents are not infringed.

Responsibility for non-transmission of data and errors

Resolution No. 897 and the newly added paragraphs of Resolution No. 354 now spell out the responsibility of the housing office for failure to transmit information to the RSO or errors in it.

The management company must transmit all data necessary for calculations and collection of payments no later than five working days before the start of the provision of utility services to RSO. This date, as a rule, is indicated in the Minutes of the general meeting of owners, at which the participants decided to switch to a direct Agreement.

The management company is obliged to transmit information in two versions: on electronic media and on paper. The document must be signed by the head of the management organization or the chairman of the board of the HOA/residential complex.

In the RF PP No. 354, a note appeared stating that the Criminal Code will be responsible for errors contained in the information transmitted to the RSO or for failure to provide all or part of the information in accordance with clause 6 of the RF PP No. 354 (clause “b”, clause 1 of the PP RF No. 897).

It is important to know! According to clause 155(1) of the RF PP No. 354, the utility service provider pays a fine to the consumer if the latter proves that his utility bills were unreasonably increased.

If errors in the data transferred to the RSO by the managing organization lead to such a situation, then it is the Housing Office that will compensate the resource supplier for losses associated with the payment of the fine. The same sanctions will be applied to the management company if it does not transmit the information necessary for calculations or does not transmit it in full.

Procedure for providing services

Within the framework of the general concept, approved by the current law, RSO ensures the supply of a utility resource to the contractor (management company), and then announces its total cost. In turn, the management company that provides this service to the consumer is fully responsible for its quality, accounting for consumed volumes, conducting recalculations, receiving relevant documents from consumers, and conducting claims work with debtors. In all these areas, the management organization also bears costs.

Tariffs for utility services are identical to the tariffs for the corresponding utility resources. That is, the income acquired by RSO in housing and communal services is formed by the cost of the supplied resource and does not include costs that are associated with the provision of utility services (utilities). As a result, a favorable scheme of interaction with clients develops for the RSO: there is no need to directly work directly with each consumer and maintain the corresponding accounting department.

However, there is another difficulty. In the lion's share of situations, the utility provider is not able to provide full payment for the utility resource received from the RSO. This is due to several practical phenomena.

1. The problem of non-payments by consumers of housing and communal services is an acute problem for organizations. The fact is that the cost of these services is high, and the income of the population is low.
2. Often, the provider of utility services uses the proceeds from residents for his own purposes and needs (covering other expenses, compensation for other costs, etc.).

For your information,
the current circumstances entail that the organizations in question (RSO and housing and communal services) are striving to find a work scheme in which they themselves could interact with the end consumers of utility services. This is stipulated in parts 6.3, 7.1 of Art. 155 Housing Code of the Russian Federation. Also, the Government Decree of the Russian Federation dated February 14, 2012 No. 124 provides for a different (alternative) method of payment for services.

Answers to pressing questions on the topic

Why enter into a direct Agreement if the owners have no claims against the management company?

Concluding a direct Agreement with a utility service provider is a right, not an obligation.

If the owners are satisfied with how the management organization conducts public utilities, there are no complaints about payment documents and the quality of public services, it is not necessary to switch to a direct Agreement.

What to do when the Criminal Code prevents the conclusion of a direct Agreement?

The management organization has no authority to interfere with or interfere with the owners’ decisions.

If the owners are not satisfied with how the management company, the HOA/housing cooperative calculates the utility resource, a debt arises to suppliers, sanctions are applied to the house in the form of temporary shutdowns of the resource, it makes sense to exercise their right and initiate a general meeting on the transition to direct contracts with utility providers.

Can the management company give up the house when switching to direct payments with the resource provider?

This is a violation of licensing requirements. The management company does not have the right to “abandon” the house.

Supervision over licensing activities is carried out by Goszhilnadzor. Complain about the arbitrariness of the management organization. In exactly the same way, evasion of resource supplying organizations from concluding direct contracts is not allowed and entails liability provided for by the legislation of the Russian Federation.

Who will charge for ODN (SOI)?

The transition to direct contracts does not affect the relationship between management companies and suppliers regarding utility resources consumed in the maintenance of the common property of an apartment building.

The obligation to transmit to the RSO the readings of common house meters for heat, gas, water and electricity remains with the management organization.

Who will be responsible for warm radiators and hot water?

Organizations supplying utility resources are responsible for supplying resources of appropriate quality to the boundaries of the common property in the apartment building and the boundaries of the external networks of engineering and technical support for a given building. Everything that starts from the basement of the house is on the conscience of the management company, HOA or housing cooperative.

The organization managing the house acts as a kind of single window for receiving complaints from consumers about violations of the quality of utility services. Therefore, if there are interruptions in the light in the house, the radiators are barely warm, or cold water flows from a hot tap, a claim must be submitted to the management of the management company, HOA or housing cooperative. If the management organization ignores complaints, we send a complaint to the State Housing Supervision Authority.

What if the management company continues to send utility bills?

The responsibility for issuing payment documents rests with the utility service provider.

When concluding direct contracts, the provider of utility services becomes the resource supply organization (RSO). It is responsible for providing receipts to consumers. Therefore, if the management company continues to issue payment documents after the house has switched to direct contracts, this is regarded as a violation of the licensing requirement.

In addition, you can demand a penalty for each illegal line on the receipt. The amount of the fine is 50% of the amount charged for the resource.

Where can I complain if a resource officer begins to “cheat” with accruals?

The State Housing Inspectorate must guard the interests of consumers of housing and communal services, regardless of who provides housing and communal services.

The task of the State Housing Inspectorate is to prevent, identify and suppress violations of the requirements established by housing legislation, including those for the provision of utility services to owners and users of premises in apartment buildings and residential buildings. In direct contracts, the resource provider is the executor of public services. Its activities must be carried out in accordance with the Rules for the Provision of Public Utilities No. 354.

If RSO violates the procedure for calculating fees for CG, it will violate the provisions of Rule No. 354. This circumstance will be the basis for inspection by the State Housing Authority authorities.

If there are no meters in the house, how much should I pay?

The same as before - according to established standards.

New concept of “performer”

In addition to Rules 354, which regulate the legal relationship between providers and consumers of utility services, it is used in the Rules that are mandatory when a management organization or homeowners association or a housing cooperative or other specialized consumer cooperative enters into contracts with resource supply organizations, approved by the RF PP dated February 14, 2012 N124 (hereinafter referred to as Rules 124 ). Paragraph 3 of paragraph 2 of Rules 124 until 06/30/2016 defined the term “performer” absolutely identical to Rules 354, but from June 30, 2021, the RF Regulation dated 06/29/2016 N603 , by which this definition was changed. In the currently valid version of Rule 124, it is established: “executor” is a legal entity, regardless of organizational and legal form, or an individual entrepreneur who is entrusted with the responsibility for maintaining common property in an apartment building and (or) providing utility services to the consumer in cases where an agreement for the management of an apartment building, including a partnership or cooperative concluded with a management organization, or the charter of a partnership or cooperative imposes the obligation to provide consumers with utility services.”

It turns out that, in accordance with the cited norm, the performers for the purposes of applying Rules 124 are: - Persons providing services for the maintenance of common property (hereinafter referred to as PO); — Persons providing utility services (hereinafter referred to as CU); — Persons providing services for the maintenance of information objects and providing CG.

Compliance with at least one of the listed options means having the status of a performer. At the same time, a number of provisions of Rule 124 allow us to conclude that it is the contractor who is obliged to provide utility services to consumers and, for this purpose, to purchase utility resources from resource supply organizations (hereinafter referred to as RSO). Paragraph 4 of paragraph 2 of Rules 124 establishes: “utilities” - the implementation by the contractor of activities to supply consumers with any utility resource separately or 2 or more of them in any combination ...”. According to paragraph 5 of Rule 124, “ The Contractor sends an application (offer) to the resource supply organization to conclude a resource supply agreement,” and the same paragraph 5 classifies management organizations, homeowners' associations, and cooperatives as contractors.

That is, from the norms of Rule 124 it follows that the executor is the person who either maintains the common property of the apartment building, or provides the property rights, or does both. Such a contractor is obliged to enter into a resource supply agreement and provide utilities to consumers. Consequently, if an HOA or a management company manages a house and provides services for the maintenance of common property, they fall under the definition of “executor” and are obliged to provide utilities.

It is important to note that the Housing Code of the Russian Federation establishes requirements for management organizations and homeowners' associations regarding the provision of utility bills. For example, part 2 of Article 162 of the Housing Code of the Russian Federation establishes: “Under an agreement for the management of an apartment building, one party (the management organization) ... undertakes to perform work and (or) provide services for the management of an apartment building, provide services and perform work on the proper maintenance and repair of common property in such a house, provide utilities to the owners of premises in such a house ...” Part 1 of Article 135 of the Housing Code of the Russian Federation establishes: “A homeowners’ association is recognized as a type of real estate owner’s association, which is an association of owners of premises in an apartment building for the joint management of common property in an apartment building or ... the property of the owners of premises in several apartment buildings or the property of the owners of several residential buildings, ... providing utility services to persons using premises in these apartment buildings or these residential buildings in accordance with this Code...”. Part 12 of Article 161 of the Housing Code of the Russian Federation: “Managing organizations, homeowners’ associations or housing cooperatives or other specialized consumer cooperatives that manage apartment buildings do not have the right to refuse to conclude, in accordance with the rules specified in Part 1 of Article 157 of this Code, contracts with resource suppliers organizations ..."

From a comprehensive assessment of the above provisions, it follows that management companies/homeowners associations managing apartment buildings are obliged to provide public services (to be the provider of such services), for which they must enter into appropriate resource supply agreements.