What is included in the concept of major repairs?
Overhaul (any) is planned work to bring the object to the condition in which it was originally, or as close as possible to that, with the replacement of any of its parts if necessary.
In relation to multi-apartment residential buildings (MCD), this means the restoration or replacement of intra-house systems and communications, roofs, basements, foundations, facades, etc., which are carried out at the expense of the capital repair fund.
Article 166 of the Housing Code of the Russian Federation dated December 29, 2004 No. 188-FZ (last edition dated June 11, 2021) - the general regulatory framework on the topic “major repairs of a building”; what is included in the (specific) list depends on the initial technical characteristics of the apartment building, the year it was built, wear and tear, and the region.
The key issue specified in the law is financing. It comes from a contribution fund into which residents pay; the amount is established by the constituent entities of the Russian Federation. Regions also determine a specific list of work at the expense of capital repairs and have the right to supplement it at their own discretion. The fund is formed either on a personal account at home or on the account of a regional operator.
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Attempts to appeal the norms of housing legislation on major repairs have been made repeatedly since 2014, that is, since the adoption of changes in the law on this type of relationship, when regional operators for major repairs (ROs in the Kyrgyz Republic) began operating in the country.
For example, on April 12, 2021, the Constitutional Court of the Russian Federation issued Resolution No. 10-P in the case of verifying the constitutionality of Part 1 of Art. 169, parts 4 and 7 art. 170 and parts 4 art. 179 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation). The norms were appealed (part 1 of article 174 of the Housing Code of the Russian Federation, part 3 of article 179 of the Housing Code of the Russian Federation), which allows the use of money from the capital repair fund (hereinafter referred to as the FKR) using the boiler method to finance capital repairs on other houses on a repayable basis.
Also in the same case, the norms (Part 1 of Article 169 of the Housing Code of the Russian Federation) were appealed, which impose on the owners of premises in an apartment building (MKD) the obligation to pay monthly contributions for the overhaul of common property (CP) in the MKD, the norms of Part 4 of Art. 170 of the Housing Code of the Russian Federation, which defines the list of issues that must be resolved by the general meeting of owners (GMS) of premises in an apartment building, which has chosen as a method of forming the FCR its formation in a special account; norms part 7 art. 170 of the Housing Code of the Russian Federation, as giving local self-government bodies (LSG) the authority to make a decision on the formation of the FCR on the account of a regional operator in relation to apartment buildings, the owners of the premises in which, within the period established by law, did not choose or did not implement the method of forming the FCR determined by them.
all controversial norms as not contradicting the Constitution of the Russian Federation,
and also concluded that the order of repairs, as well as the failure to implement the regional program, could be challenged.
Also, in the operative part of the judicial act, the federal legislator was ordered to provide a legal mechanism for the functioning of regional operators,
which will allow, in the event of termination of its activities
, to ensure the continuity of fulfillment of obligations for capital repairs,
as well as additional measures to inform owners about the content of the capital repair program, about the criteria for assessing the MKD, according to which The order of major repairs of apartment buildings is determined.
There was also an attempt to challenge the constitutionality of Art. 166 Housing Code of the Russian Federation (major repairs of OI in MKD). The Constitutional Court of the Russian Federation issued a Ruling of November 23, 2017 No. 2601-O “On the refusal to accept for consideration the complaint of citizen Igor Aleksandrovich Semin about the violation of his constitutional rights by Articles 30, 31 and 166 of the Housing Code of the Russian Federation.”
By the ruling of the Constitutional Court of the Russian Federation dated July 18, 2017 No. 1641-O “On the refusal to accept for consideration the complaint of citizen Simon Alexander Alexandrovich about the violation of his constitutional rights, the Federal Law “On Amendments to the Housing Code of the Russian Federation and certain legislative acts of the Russian Federation” was recognized as consistent with the Constitution of the Russian Federation
norms of Federal Law No. 176-FZ of June 29, 2015, Art. Art. 178, 181, 182,188 Housing Code of the Russian Federation.
By the way, judicial practice in challenging regulations approving a short-term capital repair program in the regions and other regulatory legal acts (LLA) of a constituent entity of the Russian Federation concerning capital repairs is both positive and negative.
Positive solutions
: Appeal ruling of the IC for administrative cases of the RF Armed Forces dated November 22, 2017 No. 9-APG17-21, Appeal ruling of the IC for administrative cases of the RF Armed Forces dated 09.26.2018 No. 44-APG18-18, Appeal ruling for administrative cases of the RF Armed Forces dated 12.12. 2018 No. 85-APG18-11, Appeal ruling of the IC for administrative cases of the Armed Forces of the Russian Federation dated October 24, 2018 No. 45-APG18-20.
Negative practice:
Appeal ruling of the IC for administrative cases of the RF Armed Forces of September 18, 2019 No. 45-APA19-22 on upholding without change the decision of the Sverdlovsk Regional Court dated 04/18/2019, Appeal ruling of the IC for administrative cases of the RF Armed Forces dated 10.30.2019 No. 77-APA19-3.
And here is another case challenging the constitutionality of the norms of the Housing Code of the Russian Federation on major repairs. In the dispute under consideration, the constitutionality of part 3 of article 30, part 1 and paragraphs 5 and 6 of part 2 of article 153, part 2 of article 154, parts 1 and 3 of article 158 and part 3 of article 169 of the Housing Code of the Russian Federation was disputed.
First, there was a dispute in the Irkutsk region in the district court, on the claim of citizen P. against the Fund for the Capital Repair of Apartment Buildings of the Irkutsk Region about the imposition of the obligation to recalculate the amount of contributions for the capital repairs of common property in the apartment building. She considered that the FKR illegally charged her contributions for major repairs until the registration of her ownership of the residential premises, when she owned and used them on the basis of an acceptance certificate under an agreement of shared participation in the construction of a residential building. The FKR, naturally, refused to recalculate, after which P. went to court with the said claim.
Oddly enough, by the decision of the Kirovsky District Court of Irkutsk dated October 3, 2021
the claims were satisfied. The court decided to oblige the Fund for the Overhaul of Apartment Buildings of the Irkutsk Region to recalculate the amount of contributions to the plaintiff for the overhaul of common property in an apartment building from the moment of registration of ownership of the residential premises.
Although paragraph 2 of Article 153 of the Housing Code of the Russian Federation, which obliges the person who accepted the residential premises from the Developer under a transfer deed or other transfer document to pay for the maintenance of residential premises and utilities, is already in effect from the moment he is issued permission to put an apartment building into operation since 2011. From this moment, the title owner has the right to reside in it, use, own and dispose of the residential premises, and also bears the burden of maintaining the residential premises, pays for utilities, including contributions for major repairs from the moment established by law.
By the appeal ruling of the Judicial Collegium for Civil Cases of the Irkutsk Regional Court dated January 10, 2021 in case No. 33-114/18
The decision of the court of first instance was canceled and a decision was made to dismiss the claim.
The court, in particular, stated: “...According to the legal position of the Constitutional Court of the Russian Federation, set out in Determination No. 373-O of July 18, 2006, the occurrence of the obligation to pay for utilities is determined not by the moment of state registration of the applicant’s ownership of the apartment, but by the date of acceptance of the construction project into operation and payment by the applicant under the shared construction agreement
taking into account that the obligation to pay for utilities equally applies to persons using residential premises both on the right of ownership, under a residential lease agreement, and
on other legal grounds.
...According to the explanations contained in paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2021 No. 22 “On some issues of consideration by the courts of disputes regarding the payment of utilities and residential premises occupied by citizens in an apartment building under a social tenancy agreement or owned by them by right of ownership” ", payment for residential premises and utilities ... for the owner includes payment for the maintenance of residential premises, for utilities consumed in the maintenance of common property in an apartment building. The paragraph of the said resolution clarified that payment for residential premises and utilities for the owner also includes a contribution for major repairs (clause 2 of part 2 of article 154 of the Housing Code of the Russian Federation)
;
At the same time, it is clarified that the obligation to pay fees for the maintenance of residential premises and contributions for major repairs rests only with the owner of the residential premises (Articles 30, 158 of the Housing Code of the Russian Federation and Article 210 of the Civil Code of the Russian Federation)
.
However, the losing party decided to challenge the unconstitutional (in its opinion) provisions of the Housing Code of the Russian Federation in the Constitutional Court of the Russian Federation, since, due to the uncertainty of the normative content, they allow the imposition of the obligation to pay contributions for the overhaul of common property in the apartment building on the person who accepted from the developer (the person providing construction of an apartment building) after the issuance of permission to put the apartment into operation in a given building under a transfer deed or other transfer document, until the said person acquires ownership rights to this premises.
Constitutional Court of the Russian Federation by Decision of September 30, 2021 No. 2434-O
refused to consider the case on recognizing part 3 of article 30, part 1 and paragraphs 5 and 6 of part 2 of article 153, part 2 of article 154, parts 1 and 3 of article 158 and part 3 of article 169 of the Housing Code of the Russian Federation as not complying with the Constitution of the Russian Federation.
The Constitutional Court of the Russian Federation made the following conclusions in a judicial act: “The provisions of the Housing Code of the Russian Federation, which are disputed by the applicant,
regulating the maintenance of common property in an apartment building and including establishing the occurrence of an obligation to pay contributions for major repairs from the person who accepted from the developer (the person providing the construction of the apartment building) home) after the issuance of permission to put an apartment building into operation, the premises in this building under the transfer deed or other transfer document, from the moment of such transfer, contrary to the opinion of the applicant,
do not contain uncertainty. Such regulation is aimed at maintaining a balance of rights and interests of participants in housing legal relations while maintaining the house in a condition that meets sanitary and technical requirements, and cannot be regarded as violating the constitutional rights of the applicant in the aspect specified in the complaint.”
I don’t see anything surprising in the refusal decision of the Constitutional Court of the Russian Federation. It is clear that the norms of housing legislation are very complex and not everyone will be able to understand them. Especially if he is not a practicing lawyer or the head of a management organization, but only a theorist, and not even in the housing and communal services industry. But there was no point in appealing against such obvious norms of the Housing Code of the Russian Federation, which rarely raised questions over almost 9 years of law enforcement practice, since the result was immediately obvious to the naked eye.
Sincerely, Ilmira Nosik.
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List of works for major repairs of apartment buildings
Everything that is listed in Article 166 of the Housing Code of the Russian Federation is just areas of work: the conditional “roof” - “walls” - “basement” for public use. This is a reconstruction or replacement:
- engineering systems - electricity, heating, gas supply, water supply, sewerage;
- elevators (cabins, equipment, shafts);
- roofs;
- general fellings;
- facades;
- foundations.
IMPORTANT!
This does not include maintenance of heating mains, water pipelines, etc. For example, the list of works related to the overhaul of overhead power lines (overhead electrical lines) is a different story, since the boundary of an apartment building is its wall or ASU (input distribution device) from the pole into the building. Everything outside is the responsibility of the network owners.
In some cases, the list of general house needs flows into the list of works for major repairs of an apartment (one, several or all) - if it is necessary to update or reconstruct load-bearing walls, ceilings, restore the load-bearing capacity of balconies and loggias, fences on them, etc.
We repeat: a specific list of works and (or) services, the amount of the minimum contribution, the procedure for monitoring the technical condition of objects, the criteria for the priority of major repairs, etc. are determined by the regulatory legal acts of the constituent entity of the Russian Federation. Somewhere such lists include the installation of fire-fighting automatics, somewhere - landscaping and landscaping of the local area, everywhere it is different.
Example. Law of the Nizhny Novgorod Region No. 159-Z dated November 28, 2013 (as amended on March 3, 2020) “On organizing major repairs of common property in apartment buildings.” There is a list of work carried out during the overhaul of apartment buildings in the region, which includes bringing to normal modern condition or replacing:
- in-house engineering systems of electricity, heat, gas, water supply, and wastewater disposal;
- elevators (unusable or expired), elevator shafts, machine and block rooms;
- roofs (including ventilation and roof exits);
- basements belonging to common property;
- renovation and (or) insulation of facades;
- MKD foundations;
- development of design, scientific design (for cultural heritage sites) and estimate documentation, conducting relevant examinations;
- construction control and technical supervision, inspection of the technical condition of apartment buildings;
- carrying out engineering surveys.
Links to full texts of laws
download Federal Law No. 399 Housing Code on capital repairs of apartment buildings, as amended, here. ⇐
Federal Law No. 271 on capital repairs, as amended. ⇐
Download Federal Law No. 185 on the Fund for Assistance to Housing and Communal Services Reform, as amended, from the link. ⇐
To download Government Resolution No. 690 as amended, click here. ⇐
Thus, the owners of apartment buildings are obliged to pay for major repairs in accordance with presidential decrees, orders of executive authorities, with the latest current and complete amendments. Failure to pay the fee may result in penalties in the form of penalties.
