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).
Owner's responsibilities.
Residents of an apartment building must consider issues related to repairs and make appropriate decisions. However, they cannot carry out work on replacing the riser themselves.
For repairs, a management company or a specialized company must be involved, with which a corresponding agreement is concluded. In the future, they demand from her the quality of the work performed.
Apartment owners are responsible for the elements of communication systems located in their apartment. These include, for example, water pipes, consumption meters, etc.
Who pays for the intercom - read here.
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.
Who is responsible
Apartment owners, in order to prevent negative consequences, often reinstall risers and branches at their own expense. However, this is wrong.
According to Article 161 of the Housing Code and Russian Government Decree No. 354 of 05/06/11 (Article 149), the renovation and full installation of risers is entirely the responsibility of the housing management company. Every month the owner of the apartment pays bills, as well as for “maintenance and repair work.”
For this money, manipulations related to all communications must be carried out. In the event of an emergency, the housing company must update the pipes, and collecting money from people is considered illegal.
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).
How to replace a riser.
In old apartment buildings, the riser was made of cast iron. This inexpensive and reliable material has a certain service life.
According to the standards, communications must be replaced no later than 25 years after installation.
There are situations when replacing the sewer riser in an apartment is required earlier. This is usually associated with defects that have appeared at the communication facility, which can lead to an emergency.
In order to replace the riser in the apartment, the owner must contact the management company and call a plumber.
The specialist is obliged to conduct an inspection and draw up a report on the presence of damage and the need to replace the structure. A copy of the document is left to the owner of the apartment.
Application to the Management Company.
The property owner will have to write a statement addressed to the head of the Management Company with a request to replace the riser.
It is drawn up in free form, but it must contain the following information:
- name of the management company, position and name of the manager to whom the letter is addressed;
- personal data of the owner;
- characteristics of the property;
- request to replace the riser;
- grounds for carrying out repair work;
- applications.
The application should be supplemented with an act on the need to replace communications.
In order for the application to be accepted and considered, the apartment owner must not have arrears in paying utility bills.
Representatives of the management company must respond to the request no later than 30 days after receiving it.
If the result is positive, then it is necessary to agree on the date and time of the repair work.
The owner of the apartment must provide unhindered access to communications. The management company has no right to demand any additional payment.
Complaint to the prosecutor's office against the management company.
