Since 2021, the provisions of the Rules for the provision of utility services as amended by Decree of the Government of the Russian Federation dated December 26, 2017 No. 1498 regarding the recalculation of fees for utility services due to the temporary absence of a consumer in a residential premises have changed. Now recalculation is carried out only in the case when the absence of an IPU in the premises is due to the lack of technical ability to install a meter. Let's look at the new provisions in more detail, and also study the situation that arose in practice for our reader: the consumer demands a recalculation of fees for the period before the amendments come into force.
New provisions encourage the installation of IPU
Along with numerous amendments to the Rules for the provision of public utility services, which enable the contractor to punish unscrupulous consumers with rubles, the principle of recalculating fees in the event of a consumer’s temporary absence from the premises was fundamentally changed. By the way, the recalculation procedure remained virtually unchanged.
So, if previously the recalculation was carried out for all consumers temporarily absent in the premises not equipped with an IPU, now the recalculation is carried out for consumers who were absent in the premises not equipped with an IPU due to the lack of technical ability to install it, confirmed in the prescribed manner (clause 86 Rules for the provision of public services). That is why the consumer’s application for recalculation should be accompanied not only by documents confirming the duration of the period of temporary absence, but also by an inspection report to determine the lack of technical feasibility of installing an IPU (clause 92 of the above rules).
In the absence of an IPU and the lack of confirmation of the lack of technical ability to install it, as well as in the event of a malfunction of the IPU in a residential premises (if the consumer fails to eliminate such a malfunction within 30 days), recalculation is not made. An exception is the case of the absence of all persons living in the residential premises as a result of force majeure, confirmed by relevant documents (for example, the eviction of citizens from their home due to an emergency).
The above provisions of the rules actually encourage owners of premises in apartment buildings to install IPU, if the appropriate technical capability is available. Otherwise, when calculating the fee, an increasing factor will be applied, and you can count on a reduction in the amount of payment only if the number of consumers changes (deregistration at the place of residence or temporary stay).
What to do if there are errors in the payment
If the consumer entered something incorrectly when filling out the receipt, he can simply carefully cross out the incorrect data and replace it with the correct values on top or on the side.
In cases where incorrect information is printed from the management company or another supply company, you need to contact them. If, in the process of deciphering a receipt for payment of utility services, it becomes clear that the resource supply company has indicated an invoice that is too large or small, or an incorrect name or apartment number, you should find their contacts and contact them. First, you can call the number that is usually listed at the bottom of the page and try to resolve the issue over the phone. If you cannot resolve the issue remotely, you will have to contact the office in person.
Action of a new order in time.
Until 01/01/2017, the rule was in effect that temporary absence from the premises is grounds for recalculation of the fee in itself, regardless of the reason for not installing the IPU on the premises. After the new rule comes into force, the question arises: how to apply it over time? Is the contractor obliged to recalculate the fee for 2021 if the application is submitted in 2021? Should the fee be reduced if the period of temporary absence from the premises began in 2021 and ended in 2021 (if it is technically possible to install an IPU)?
The answers to all these questions can be found in Art. 6 Housing Code of the Russian Federation. The rules for the provision of utility services, approved by a resolution of the Government of the Russian Federation, are an act of housing legislation (Part 2 of Article 5 of the Housing Code of the Russian Federation). In accordance with Part 1 of Art. 6 of the Housing Code of the Russian Federation, acts of housing legislation do not have retroactive force and apply to housing relations that arose after their entry into force. In housing relations that arose before the enactment of the housing legislation act, this act applies to housing rights and obligations that arose after its entry into force (Part 3 of Article 6 of the Housing Code of the Russian Federation). In paragraph 5 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 2, 2009 No. 14, it is explained: since relations regulated by housing legislation, as a rule, are of an ongoing nature, the rights and obligations of the subjects of these relations may arise even after the legal relationship itself has arisen. Indeed, the legal relationship between the consumer and the contractor arose at the moment the provision of utility services began. Since it is ongoing, the provisions of the new edition of the Rules for the provision of utility services apply only to rights and obligations that arose after 01/01/2017.
In other words, the consumer has the right to claim a recalculation of utility bills for the period of temporary absence from a residential premises not equipped with an IPU (including even if it is technically possible to install it), until 12/31/2016 inclusive. Recalculation for the period of temporary absence from 01/01/2017 is possible only if the lack of technical ability to install the IPU is confirmed.
Thus, the cancellation of recalculation of fees for utility services if it is technically possible to install an IPU is not a reason for refusal to recalculate fees for the period before 12/31/2016, including when submitting the corresponding application after 01/01/2017.
About the 30-day preventive period.
According to clause 91 of the Rules for the provision of utility services, the recalculation of the amount of payment for utility services is carried out by the contractor within five working days after receiving a written application from the consumer to recalculate the amount of payment for utility services, submitted before the start of the period of temporary absence of the consumer or no later than 30 days after the end of the period of temporary absence of consumer. Paragraph 37 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2017 No. 22 states: the tenant, owner and other persons living in the residential premises, for valid reasons, have missed the deadline for filing an application for recalculation of utility bills due to his temporary absence (for example , serious illness or other circumstances beyond the control of a person due to which he was deprived of the opportunity to timely apply for a recalculation of fees for utility services) is not a basis for refusing to satisfy requests for a recalculation of such fees.
Please note that the 30-day period is preemptive, since it determines the period of existence of the consumer’s right to recalculate the fee. Not long ago, a citizen filed an application with the Constitutional Court of the Russian Federation to recognize clause 91 of the Rules for the provision of public utility services in terms of establishing a period of non-compliance with federal legislation on the statute of limitations. By ruling No. 587-O dated March 28, 2017, consideration of the complaint was refused, since the disputed provision was adopted within the competence of the Government of the Russian Federation and is aimed at ensuring the functioning of the communal infrastructure of residential buildings and thereby protecting the interests of citizens living in them and cannot be considered as violating constitutional rights and freedoms of the applicant listed in the complaint.
When receiving an application later than 30 days after the end of the period of temporary absence without indicating the reasons for violating this period, it is advisable for the contractor to request information about such reasons and independently assess their validity. The fact is that if the dispute goes to the stage of judicial proceedings, the consumer can declare these reasons and the court will take them into account based on the explanations of the Plenum of the Armed Forces of the Russian Federation.
Examples of court decisions in which missing a 30-day deadline became the only or one of several reasons for refusing to satisfy the consumer’s demands for recalculation are as follows: appeal rulings of the Samara Regional Court dated May 31, 2017 in case No. 33-6337/2017, Moscow City Court dated December 22, 2016 in case No. 33-51391/2016, dated November 24, 2014 in case No. 33-46838, Sverdlovsk Regional Court dated August 26, 2016 in case No. 33-14921/2016, Perm Regional Court dated June 6, 2016 in case No. 33‑6106/2016, Altai Regional Court dated 05/26/2015 in case No. 33‑4699/2015.
Judicial acts on consumer requests to recalculate contain the following remark: “The consumer’s arguments do not contain references to circumstances indicating that the deadline was missed for good reasons,” which is the reason for the refusal to carry out recalculation (Appeal ruling of the Volgograd Regional Court dated February 26, 2014 in case No. 33‑2261/2014).
Where to complain if a recalculation is refused
It is the responsibility of the supplier and management organization to change the amount of payment for water supply services depending on the circumstances. If the management company refuses to recalculate water costs, you can find leverage.
First, you should receive a written refusal from the company. You can complain about this refusal to the prosecutor’s office and Rospotrebnadzor. An appeal, supported by a written refusal and a copy of the application for recalculation, will become a reason for verification. If the requirements are justified, a recalculation will be made.
If the instructions of the regulatory authorities do not find a response, there is another chance to restore justice - a trial. It will also help in compensation for moral damage. You can go to court without going through the supervisory authorities.
Read more about where to complain about the Management Company.
On calculating the period during the transition period.
Let's consider a specific situation in which it is necessary to determine the beginning of the 30-day pretrial period. There is no IPU in the premises, the lack of technical possibility of installing it has not been confirmed by an inspection report drawn up legally. The absence of all persons living in the premises as a result of force majeure is also not documented. The consumer has been absent from the premises since September 2021 and continued to be absent at the time of filing the application for a fee recalculation in March 2021. The application for recalculation indicates the period of temporary absence for which the consumer requires recalculation - from the date of departure from the residential premises to December 31, 2016.
The question arises: what date should be considered the end date of the period of temporary absence, from which the 30-day period for filing an application begins?
If we consider the end date of the period of temporary absence to be December 31, 2016, a statement dated March 2021 indicates a violation of the deadline and, without valid reasons for such a violation, does not give the right to demand a recalculation.
Assuming that the period of temporary absence has not yet ended, filing an application at any time before the consumer actually returns to his place of residence (and within 30 days thereafter) legally entitles him to a reduction in utility fees.
The second option is more beneficial to the consumer and is based on a literal interpretation of clause 92 of the Rules for the provision of public utility services.
The first option is more beneficial to the performer, and the arguments in its favor deserve attention. So, starting from 2021, simply the temporary absence of a consumer in the premises (indicates non-consumption of utilities) is not enough to recalculate fees. The second equivalent circumstance is the lack of technical ability to install the IPU (indicates the conscientiousness of the consumer; consumers who have not installed the IPU, if they have the appropriate technical capability, will have to pay for utilities in full, regardless of their actual use, as well as an increasing coefficient). The presence or absence of the technical ability to install the meter is determined at a certain point. As part of a major overhaul or reconstruction of an apartment building, work can be carried out that will change the condition of utility networks or other elements of common property and, for example, will ensure the technical ability to install an IPU that was previously absent. Once it has been established that it is technically possible to install the IPU, the very fact of the physical absence of the consumer in the MKD premises ceases to be of interest to the contractor and is not a basis for applying the provisions of Section. VIII Rules for the provision of public services. Accordingly, it no longer even makes sense for the consumer to confirm his temporary absence from the premises. Therefore, it seems that the period of temporary absence for the purposes of applying the rules on recalculation should be understood only as the period that gives the right to recalculation. In the situation under consideration, the period when the consumer had the right to recalculation ended on December 31, 2016, therefore the application should have been submitted no later than January 30, 2017.
However, we do not undertake to predict the outcome of the trial, especially considering that the courts predominantly side with consumers.
Rules for charging fees in the absence of submission and incorrect submission of data
If the apartment has a water meter, the tenant has the right to report its readings. But it is not always possible to use this right. And if you haven’t submitted your testimony for a long time, the water fee may increase.
The accrual rules are determined by clause 59 of Resolution No. 354. In clauses. “b” is fixed: if the data is not transferred, the fee for the first 3 months is calculated taking into account the average consumption for the previous six months. If the tenant has forgotten about the meters for more than 3 months, then the payment is made according to consumption standards (clause 60), but without a coefficient.
When resuming the submission of information, the consumer may think about whether they should recalculate the water bill if they have not submitted the information for more than 3 months. There is no recalculation for the previous period. According to paragraph 31 of the Resolution, the supplier is obliged to use readings from apartment meters only for the billing period for which they were taken.
If readings were also taken in June for April-May, only the water used in June will be paid for on the meter.
Many payers have a question about what to do if the readings were reported incorrectly: the figure was changed upward, the readings for hot and cold water were mixed up, and so on.
When contacting the supplier, the fee will be recalculated, and the overpaid money will become an advance payment for the following months. Another option: the tenant will be credited for the amount underpaid for services in the previous billing period. This scheme of action is also valid if the electricity meter readings were transmitted incorrectly.
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Cancellation from 2021 of the recalculation of fees for the temporary absence of a consumer from the residential premises, despite the fact that the absence of an IPU is not due to the lack of technical ability to install it, does not mean that the consumer does not have the right to count on a recalculation of fees for the period of temporary absence from the premises until 2021, without having an act inspection to determine the lack of technical ability to install the meter. However, you should apply for recalculation no later than 30 days from the end of the period of temporary absence.
Housing and communal services: accounting and taxation, No. 9, 2021
Who is responsible for hot water?
It often happens that in order to receive a recalculation for domestic hot water, the consumer has to find out who is responsible for hot water, its temperature and quality.
It should be remembered that citizens make mutual payments with those organizations with whom they have a concluded agreement for heat and water supply.
Most often, management companies are responsible for delivering water to residents of apartment buildings, and heat supply organizations are responsible for the temperature and quality of water only up to the separation point (border) between the centralized system and the house system.
