Obligation to pay for the maintenance and repair of visual equipment in the apartment building
Management organizations issue invoices to the owners of non-residential premises for the maintenance and repair of the common property of apartment buildings. The owners of such premises refuse to pay the received payment documents, arguing that they do not have a contractual relationship with the management company.
By virtue of clause 2 of Art. 8.1 of the Civil Code of the Russian Federation, the right of ownership of property subject to state registration arises, changes and terminates from the moment the corresponding entry is made in the state register, unless otherwise provided by law.
The owner bears the burden of maintaining the property he owns (Article 210 of the Civil Code of the Russian Federation).
Common property in an apartment building belongs to the owners of the premises on the right of common shared ownership, in accordance with clause 1, part 1, art. 36 Housing Code of the Russian Federation. The common property of apartment buildings includes premises that are not parts of apartments and are intended to serve more than one room in such a building:
- inter-apartment landings;
- stairs;
- elevators;
- elevator and other shafts;
- corridors;
- technical floors;
- attics;
- basements with utility lines;
- other equipment serving more than one room.
Each participant in common shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation (Article 249 of the Civil Code of the Russian Federation).
Owners of premises in apartment buildings bear the burden of expenses for maintaining common property in an apartment building (Part 1 of Article 39 of the Housing Code of the Russian Federation).
In accordance with Part 2 of Art. 154 of the Housing Code of the Russian Federation, payment for residential premises and utilities of the owner of the premises in an apartment building includes payment for services and work on managing such a house, for the maintenance and ongoing repairs of common property in an apartment building, for utility resources consumed during the use and maintenance of public buildings in an apartment building.
The owner's obligation to pay maintenance and repair costs is not conditioned by the existence of a contractual relationship with the management organization. This conclusion can be found in paragraph 24 of the Review of judicial practice of application of the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, approved by the Presidium of the Supreme Court of the Russian Federation on June 28, 2017.
By virtue of Part 2.3 of Art. 161 of the Housing Code of the Russian Federation and clause 10 of the Decree of the Government of the Russian Federation of August 13, 2006 No. 491, the performance of work and provision of services for the maintenance of the common property of an apartment building is mandatory for the management organization in accordance with the legislation of the Russian Federation. The MA cannot refuse to perform such work and provide services even if a state or municipal contract has not been concluded.
The fact that the owner of non-residential premises did not take action to conclude a contract to fulfill the obligation to bear expenses for common property does not relieve him of the obligation to pay the appropriate fee.
Thus, the owner of a non-residential premises located in an apartment building, by virtue of the direct instructions of the law, is obliged to bear the costs of maintaining the common property, unless otherwise provided by law or contract.
Debt collection in the housing and communal services sector
In accordance with Article 161 of the Housing Code of the Russian Federation, the management of an apartment building must ensure favorable and safe living conditions for citizens, proper maintenance of common property in an apartment building, resolving issues regarding the use of said property, as well as the provision of utilities to citizens living in such a building, or in cases provided for Article 157.2 of the Housing Code of the Russian Federation, the constant readiness of utilities and other equipment that are part of the common property of the owners of premises in an apartment building for the provision of utilities.
Proper maintenance of the common property of the owners of premises in an apartment building must be carried out in accordance with the requirements of the legislation of the Russian Federation, including in the field of ensuring the sanitary and epidemiological well-being of the population, on technical regulation, fire safety, and consumer protection.
In accordance with the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation dated August 13, 2006 No. 491 (hereinafter referred to as Rules No. 491), the common property in an apartment building must be maintained in a condition that ensures:
— compliance with the reliability and safety characteristics of an apartment building;
— safety for the life and health of citizens, safety of property of individuals or legal entities, state, municipal and other property;
— accessibility of use of residential and (or) non-residential premises, common areas, as well as the land plot on which the apartment building is located, including for people with disabilities and other groups of the population with limited mobility;
— compliance with the rights and legitimate interests of premises owners, as well as other persons;
— constant readiness of utilities, metering devices and other equipment included in the common property for the provision of utilities (supply of utility resources) to citizens living in an apartment building, in accordance with the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings houses;
— maintaining the architectural appearance of an apartment building in accordance with the design documentation for the construction or reconstruction of an apartment building;
— compliance with the requirements of the legislation of the Russian Federation on energy saving and increasing energy efficiency.
Proper maintenance of common property, depending on the method of managing an apartment building, is ensured by:
1. Owners of premises in the apartment building:
-by concluding a management agreement for an apartment building with a management organization (part 5 of Article 161 and Article 162 of the Housing Code of the Russian Federation);
- by concluding an agreement on the maintenance and repair of common property with persons providing services and (or) performing work (with direct management of an apartment building) (Article 164 of the Housing Code of the Russian Federation);
2. HOA, housing cooperative, residential complex (when managing an apartment building):
- through membership of premises owners in these organizations (Sections V and VI of the RF Housing Code);
3. Developer (person providing construction of an apartment building)
- in relation to premises in this building that were not transferred to other persons under a transfer deed or other transfer document, from the moment of issuing permission to put the apartment building into operation:
— independently (when the developer manages an apartment building without concluding a management agreement for such a building with the management organization);
— by concluding a management agreement for an apartment building with a management organization (part 14 of article 161 of the Housing Code of the Russian Federation);
4. The person who accepted the premises from the developer under the transfer deed or other transfer document (the person providing the construction of the apartment building) after issuing permission to put the apartment building into operation:
— by concluding a management agreement for an apartment building with a management organization (Part 13 of Article 161 of the Housing Code of the Russian Federation).
The maintenance of common property , depending on the composition, design features, degree of physical wear and tear and technical condition of the common property, as well as depending on the geodetic and climatic conditions of the location of the apartment building, includes :
— inspection of common property, ensuring timely identification of non-compliance of the condition of common property with the requirements of the legislation of the Russian Federation, as well as threats to the safety of life and health of citizens;
— ensuring the readiness of in-house engineering power supply systems and electrical equipment that are part of the common property to provide public electricity supply services;
- maintaining the premises that are part of the common property in a condition that ensures the temperature and humidity in such premises established by the legislation of the Russian Federation, including by constantly maintaining open air throughout the entire calendar year for the premises of basements and technical underground areas that are part of the common property property, if there are vents in such premises;
- cleaning and sanitary cleaning of common areas, as well as the land plot included in the common property;
— collection and removal of liquid household waste, including waste generated as a result of the activities of organizations and individual entrepreneurs using non-residential (built-in and attached) premises in an apartment building;
— organization of places for the accumulation and accumulation of waste mercury-containing lamps and their transfer to specialized organizations that have licenses to carry out activities for the collection, use, neutralization, transportation, disposal of waste of I - IV hazard classes;
— work on the maintenance of places (sites) for accumulation of MSW in accordance with established requirements. The specified work does not include cleaning of MSW loading areas.
— fire safety measures in accordance with the legislation of the Russian Federation on fire safety;
- maintenance and care of landscaping and landscaping elements, as well as other objects intended for the maintenance, operation and improvement of this apartment building located on a land plot that is part of the common property;
- current and major repairs, preparation for seasonal operation and maintenance of common property, as well as improvement elements and other objects intended for the maintenance, operation and improvement of this apartment building, located on a land plot that is part of the common property;
— carrying out mandatory energy saving and energy efficiency measures in relation to common property, included in the list of measures approved in accordance with the procedure established by the legislation of the Russian Federation;
— ensuring the installation and commissioning of collective (common house) metering devices for cold and hot water, thermal and electrical energy, natural gas, as well as their proper operation (inspections, maintenance, verification of metering devices, etc.), except in cases when the responsibility for installation and commissioning of electrical energy metering devices is assigned to the guaranteeing supplier in accordance with the Federal Law “On Electric Power Industry”;
- purchase of cold water, hot water, electrical energy consumed during the maintenance of common property in an apartment building, as well as the disposal of wastewater for the purpose of maintaining common property in such a building, provided that the design features of the apartment building provide for the possibility of such consumption and disposal.
Services and works do not include:
a) maintenance and repair of doors to apartments, doors and windows located inside residential or non-residential premises that are not public premises;
b) insulation of window and balcony openings, replacement of broken glass windows and balcony doors, insulation of entrance doors in apartments and non-residential premises that are not common areas;
c) cleaning and cleaning of land plots that are not part of the common property, as well as landscaping and care of landscaping elements (including lawns, flower beds, trees and shrubs) located on land plots that are not part of the common property. These actions are carried out by the owners of the relevant land plots.
The minimum list of services and work necessary to ensure proper maintenance of common property in an apartment building and the Rules for the provision of services and performance of work necessary to ensure proper maintenance of common property in an apartment building were approved by Decree of the Government of the Russian Federation dated April 3, 2013 No. 290.
The minimum list of services and works includes the following types of work:
I. Work necessary for the proper maintenance of load-bearing structures (foundations, walls, columns and pillars, floors and coverings, beams, crossbars, stairs, load-bearing elements of roofs) and non-load-bearing structures (partitions, interior decoration, floors) of apartment buildings;
II. Work necessary for the proper maintenance of equipment and engineering support systems that are part of the common property in an apartment building;
III. Work and services for the maintenance of other common property in an apartment building.
Carrying out work to maintain in proper technical condition the systems of intra-house gas equipment, elevator facilities and fire protection systems of an apartment building, provided for in the list of services and works, is carried out by specialized organizations.
This list of services and works, the frequency of their provision and implementation are determined and reflected depending on the chosen and implemented method of managing an apartment building:
- in the decision of the general meeting of owners of premises in an apartment building - if the management of the apartment building is carried out directly by the owners of premises in the apartment building;
- in the management agreement for an apartment building - if, in accordance with the established procedure, the management organization has chosen the method of managing the apartment building;
- in the manner determined by the charter of the partnership or cooperative, - in the event that the management of common property in an apartment building is carried out directly by the HOA, housing complex, housing cooperative;
- in the decision of the developer - in the case provided for in Part 14 of Art. 161 Housing Code of the Russian Federation, if the developer directly manages the apartment building.
The list of services and works for each apartment building is determined taking into account:
— structural elements of an apartment building, including structures and (or) other equipment designed to ensure accessibility conditions for the premises of an apartment building for disabled people;
— the presence and composition of in-house engineering systems that ensure the provision of utility services to consumers of the types that can be provided using such in-house engineering systems;
- the presence of a land plot on which an apartment building is located, with elements of landscaping and landscaping, and other objects intended for the maintenance and operation of this house;
— geodetic and natural-climatic conditions of the location of the apartment building.
The frequency of provision of services and performance of work provided for in the list of services and work is determined taking into account the requirements established by the legislation of the Russian Federation. By decision of the owners of premises in an apartment building, a more frequent frequency of provision of services and performance of work may be established than provided for by the legislation of the Russian Federation.
Based on Decree of the Government of the Russian Federation dated May 15, 2013 No. 416, in order to ensure the provision of services and performance of work provided for in the list of services and works, persons responsible for the maintenance and repair of common property in an apartment building are obliged to:
— ensure the operation of the emergency dispatch service;
— maintain and store technical documentation for an apartment building in the manner prescribed by the legislation of the Russian Federation;
— timely conclude contracts for the provision of services and (or) performance of work on the maintenance and repair of common property in an apartment building with third-party organizations, including specialized ones, if the persons responsible for the maintenance and repair of common property in an apartment building do not provide such services and do not perform such work on their own, as well as monitor the fulfillment by these organizations of obligations under such contracts;
- prepare proposals for the implementation of planned routine work on the maintenance and repair of common property in an apartment building, as well as proposals for major repairs, including based on the results of inspections of common property in an apartment building, and bring them to the attention of the owners of premises in an apartment building in the manner established by the housing legislation of the Russian Federation;
— organize work on calculating and collecting fees for the maintenance and repair of residential premises;
— organize work to collect debts for payment of residential premises;
— provide consumers of services and work, including owners of premises in an apartment building, with information related to the provision of services and performance of work provided for in the list of services and work, the disclosure of which is mandatory in accordance with the legislation of the Russian Federation.
To prepare a list of necessary services and work for the maintenance and repair of a house, you must:
— obtain (collect) all the necessary information about the common property in an apartment building (the composition of the common property with the necessary qualitative and quantitative characteristics);
— inspect all parts of the common property in order to assess their condition;
— for each part of the common property, draw up a list of necessary works (services) to maintain in proper technical and (or) sanitary condition.
In order to compile a list of necessary work on its content, information is required about the actual condition of all elements of the common property: does it meet the mandatory requirements of reliability and safety, does the element of the common property only need to maintain the existing condition (that is, preventive maintenance) or is repair required ( current or capital) or replacement.
Inspection of common property, ensuring timely detection of non-compliance of the condition of common property with the requirements of the legislation of the Russian Federation, as well as threats to the safety of life and health of citizens, is an integral part of the maintenance of common property and, according to the law, when managing a house, “management of a management organization” is the responsibility of the management organization. Carrying out an inspection of common property to assess compliance of its condition with legal requirements should be included in the list of services and work performed by the management organization under the management agreement for an apartment building. If this service of the management organization is specified in the management agreement, the management organization must have an inspection report of all elements of the common property.
Inspections of common property are divided into:
1) routine inspections:
- general, during which an inspection of all common property is carried out;
— partial, during which an inspection of elements of common property is carried out.
General and partial inspections are carried out within the time limits recommended in the technical documentation for an apartment building and ensuring proper maintenance of the common property, including depending on the materials used to manufacture the elements of the common property.
2) seasonal inspections are carried out twice a year:
— spring inspection is carried out after the snow melts or the end of the heating season in order to identify damage to common property that occurred during the winter period. At the same time, the scope of work for current repairs is clarified;
— an autumn inspection is carried out before the onset of the heating season in order to check the readiness of an apartment building for operation during the heating season.
3) extraordinary inspections are carried out within one day after an accident, a dangerous natural process or phenomenon, a catastrophe, a natural or other disaster has occurred.
A detailed description of the common property with qualitative and quantitative characteristics, as well as an assessment of the actual condition of all elements of the common property is the basis for planning the necessary services and work on the maintenance and repair of the common property.
Once the necessary information about the common property has been obtained, you can begin to compile a list of all the works and services necessary to ensure the proper condition of the common property.
Information on the provision of services and performance of work provided for in the list of services and work is reflected in acts drawn up in the form established by the federal executive body exercising the functions of developing state policy and legal regulation in the field of construction, architecture, urban planning and housing and communal services. , and are an integral part of the technical documentation of an apartment building.
An approximate list of works and services for the maintenance of common property in an apartment building and their frequency are given in the Decree of the State Construction Committee of the Russian Federation dated September 27, 2003 No. 170 “On approval of the Rules and Standards for the Technical Operation of the Housing Stock” and the Moscow standards for the operation of the housing stock (ZHM).
State control over the maintenance of common property is carried out by federal executive authorities and executive authorities of the constituent entities of the Russian Federation within the limits of their competence. In the city of Moscow, such functions are assigned to the State Housing Inspectorate of the City of Moscow (Moszhilinspektsiya).
Debt collection from owners of non-residential premises
Owners of non-residential premises in apartment buildings are required to pay for housing and communal services according to the same rules as owners of residential premises. The management organization may require the owner of non-residential premises to promptly pay fees for the maintenance and repair of the common property of an apartment building.
If the owner of a non-residential premises refuses to pay the management organization for the maintenance and repair of common property, you should first try to resolve the issue amicably and explain to the owner of the non-residential premises why he is obligated to pay for the maintenance and repairs of the residential premises: send debt payments, letters or try to conclude an agreement about debt repayment.
If the owner refuses to pay the bills, the management company should proceed to pre-trial debt collection: before filing an application to the court, the debtor must submit a claim demanding payment of the debt on a voluntary basis. According to Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, the debtor is obliged to respond to such a claim within 30 calendar days.
If the debtor refuses or does not respond to the claim at all, the management organization may file a claim in court. The Arbitration Court considers such applications. But it happens that disputes reach the Supreme Court of the Russian Federation.
An example of such a dispute is given in the ruling of the Supreme Court of the Russian Federation dated November 28, 2017 in case No. 305-ES17-10430. In it, the court indicated that the management organization can recover the debt for the maintenance and repair of common property from the owner of non-residential premises.
How to register partial repayment of debt for housing and communal services
Determination of the share in the common property of an apartment building
Calculating the share in the total property of the house is very simple. It is enough to know the total area of the house, which consists of the area of residential and non-residential premises and the area of the remaining common premises (staircases, utility rooms). And then divide the area of your apartment by the total area of the house. For example, the area of the apartment is 70 square meters. m., and the area of the apartment building is 10,000 sq. m. m. Accordingly, the share of the apartment will be 70/10000=0.007. Such a share cannot be allocated in kind, and you cannot say that you own a specific 0.007 of the roof of the house, but there is a share, and therefore property too.
Calculation of the share of land plot under an apartment building
Most often, the calculation of the share of a land plot under an apartment building is carried out in order to determine the collection of tax on the land plot, and so that your rights are not violated, we made this calculation. Calculation of the share of a land plot under an apartment building is similar to the calculation of the share of common property in an apartment building. For example, the total area of an apartment building is 10,000 square meters. m., and the area of your apartment is 70 sq. m. Then the share in the total area of the house is 70/10000=0.007. This means that your share in the land plot is 0.007 of the area of the land plot. That is, if the area of the land plot is 4000 sq. m., then the area of your land plot will be 4000 * 0.007 = 28 sq. m. m.
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