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Having conducted more than 800 seminars for management companies and homeowners associations, I can safely say that discussing management fees and everything connected with it always turns into a heated argument. The main battles arise around issues related to accounting and tax accounting of management fees, the need to activate this service with property owners, the structure of this fee, etc. Since the questions are constant, I decided to write a series of articles in which I will try to “chew” to the public the features of this line in the receipt.
Let's start from afar.
No matter what anyone says, the management organization “enters the apartment building” not to satisfy the needs of residents (there is the state and people of the opposite sex for this), but to make a profit. Profit, in turn, is the worst irritant for a huge number of property owners, since they truly believe that servicing their apartment buildings costs a penny, and inflation does not apply to the costs of management companies
.
The state, in paragraph 2 of Article 162 of the Housing Code of the Russian Federation, directly indicated that the management organization (hereinafter referred to as MA), under the management agreement, “ obliges to perform work and (or) provide services for the management of an apartment building
, provide services and carry out work for the proper maintenance and repair of common property in such a house, provide utilities to the owners of premises in such a house and persons using the premises in this house...
”
Pay attention to the text above and you will see that it separates
from services for the maintenance and repair of common property, as well as from utilities, so let’s immediately determine that the fee for the management of apartment buildings is a fee for a separate type of activity of the management company, although it can be included in the fee for the maintenance of residential premises in accordance with paragraphs. 2 clause 1 of article 154 of the Housing Code of the Russian Federation.
In practice, the management fee could be:
- highlighted as a separate line in the payment document;
- in the payment document is included in the line “fee for the maintenance of residential premises”, but allocated
separately in the list of works and services;
- in the payment document is included in the line “fee for the maintenance of residential premises”, but NOT highlighted
separately in the list of works and services.
The first and second options mentioned above are safe from the point of view of the consequences of a “war” for the money of the UO, but the third option is fraught with very bad consequences
.
The problem is that although it is not directly written in the regulations, the courts make it clear that there is money that belongs to
to the owners of the premises, and there is money that, after payment,
no longer belongs
.
Thus, the Supreme Court of the Russian Federation in the Ruling of the Supreme Court of the Russian Federation dated June 25, 2018 N 304-ES18-7866 in case N A46-15897/2016 ( in fact, there are already hundreds of such rulings
) indicated that contributions from owners in the form of fees for the maintenance of residential premises “
have a target character and do not become the property of the Company
.”
What does all this mean in practice?
This means that if the UO does not separate the flies from the cutlets, or rather, its money from “their” money, then it may turn out that it simply will not have its own money
.
From decision to decision, judges say that if the management company has not completed the work, then the funds remain
on the personal account of the apartment building, and if we assume the apartment building has “gone away,” then the “undeveloped” funds
should be returned
to the owners of the premises as unjust enrichment.
From the point of view of our rather “smoky” legislation regulating the scope of management of apartment buildings, debiting funds from the personal account of apartment buildings is possible only after signing a certificate of completion of work
between the representative of the owners of premises in the apartment building and the management organization (clause 4.11 of GOST R 56192-2014. “National standard of the Russian Federation. Housing and communal services and management of apartment buildings. Services for maintaining the common property of apartment buildings. General requirements”).
And then 2 problems come around the corner:
- in MKD no one
sign certificates of completed work, because there are few real violent ones and no one dared to become chairman of the house council;
- How can you even get management work done???
The first problem
can be circumvented through a management agreement or a general meeting of owners (
if interested, write in the comments and I’ll write a detailed FAQ
), and
the second problem
is actually often unsolvable.
There is a “wonderful” document called the Rules for the provision of services and performance of work necessary to ensure the proper maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation of April 3, 2013 No. 290 (hereinafter referred to as Rules No. 290). So, paragraph 9 of Rules No. 290 states that “ information on the provision of services and performance of work provided for in the list of services and work
, are reflected in acts drawn up in
the form
established by the federal executive body, which carries out 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
.
If you “fail” at the link in this paragraph, then you will see the form of the act itself, which is approved by Order of the Ministry of Construction of Russia dated October 26, 2015 No. 761/pr “On approval of the form of the act of acceptance of services provided and (or) work performed on the maintenance and routine repair of general property
in an apartment building."
Please note that neither the title of the document nor the form itself refers to the activation of management services
?
And this is absolutely true, because:
- Housing complex of the Russian Federation divides
services for the maintenance and repair of common property from management services (clause 2 of article 162 of the Housing Code of the Russian Federation);
- it is impossible to activate services with each house
on filling out the GIS housing and communal services, lawyers going to court, thoughts of the chief accountant and economist on the issue of reflecting certain data in the report on the execution of the management agreement and other work, which, in accordance with the Rules for the implementation of activities for the management of apartment buildings, approved by Decree of the Government of the Russian Federation of May 15, 2013 No. 416 (hereinafter referred to as Rules No. 416) relate to management services.
- detailing of management work in the list of works and services is simply impossible
, since it is impossible to plan and subsequently justify something
that is not of a material nature
.
You read this article during working hours and the owners pay you for it. If they are all sitting next to each other and activating this process, say hello to them from me
. Many will argue that we detail everything as it should be... Then I personally have a question - HOW do you do this?
Now let’s return to what was a little higher in the text and analyze the situation when the management fee is not allocated in the list of works and is included in the fee for the maintenance of residential premises
.
Answer me a few questions (write in the comments):
- How will you separate your money (for your dear management) from “their” money for maintenance and repairs?
- How will you activate maintenance and repair services within the management work?
- Well, first of all, how will you apply the benefit under paragraph 30, paragraph 3, Article 149 of the Tax Code of the Russian Federation in terms of exemption from VAT?
If the continuation is interesting, I will write a second part.
Sincerely, your comrade Stalin)))
What it is?
The phrase “maintenance and ongoing repairs of housing” has its own persistent meaning enshrined in legislation. Based on Article 1354 of the Housing Code of our country, you can find out what services are included in the maintenance and ongoing repairs of housing (read more about the legislation regulating ongoing repairs here).
Routine maintenance and repair of common property in an apartment building (AMD) is a list of necessary seasonal and other works , which are aimed at maintaining the house in an attractive and functional form, eliminating problems and shortcomings that prevent the owners from living in their apartments.
In addition, the management company or HOA, which carries out the maintenance and routine repairs of common property, must closely monitor the condition of the common property and prevent it from being damaged.
List of works and services included in the payment for housing maintenance in the housing and communal services receipt
Once a month, apartment owners receive a receipt , which contains a section “Housing maintenance and current repairs .
Therefore, it is necessary to know exactly what work is included in the payment . It is necessary to study this issue in detail, since it determines what services residents pay for .
The management company is required to perform the following type of work:
- strengthening canopies and railings, as well as porches and landings,
- current type of repair, that is, replacement of springs, windows, and doors, if necessary,
- repairing the building, clearing the roof of snow and the porch of ice,
- strengthening the facade of the building: replacing plaster or tiles,
- annual processing of parts made of wood,
- checking the tightness of cracks and hatches,
- in the event of an accident in the house or in the local area, its rapid elimination,
- repair of devices, for home technical support,
- care of plantings in the local area,
- landscaping of the area adjacent to the house: garbage removal, leaf collection,
- actions to install street signs and house numbers.
Read the article: What are the responsibilities of management companies in the housing and communal services sector for the maintenance and repair of apartment buildings?
Residents, as well as the service organization, can prescribe additional items that do not contradict current legislation.
If both parties agree to add new conditions to the existing contract, then changes are made and supported by signatures from the residents and the management company.
The cost of housing maintenance in the receipt includes compensation for the following expenses:
- rent: this item is paid only by those living in the house whose apartments have not been privatized,
- carrying out routine repairs of a residential building,
- putting things in order in public areas, that is, cleaning ,
- major renovation.
It is important to note that all of the listed items must be combined into one column. If this is not the case, then writing them separately is a deviation from the law.
If there are violations, it is recommended to contact the tax office .
The difference between contributions for major repairs, maintenance and repairs of housing
The funds that apartment owners transfer for the maintenance of the house (this also includes the costs of current repairs) are small, labor-intensive and inexpensive works or construction activities, the purpose of which is to maintain the object in a habitable and technically suitable condition. These include:
- repair of windows, doors;
- reconstruction of stairwells;
- landscaping of yards.
Such services can be provided either according to a predetermined schedule or carried out in emergency mode. In this case, funds are transferred upon actual receipt.
As for major repairs, they are planned well in advance. The basis for the event is an expert opinion - it is held once every few years. Money is taken from the payer in advance - monthly, in fixed amounts.
To ensure that the rights of apartment owners are not violated by utility services, and that receipts do not contain inflated amounts, each resident must not only carefully study what is written on the payment slip, but also familiarize themselves with the basic document - the agreement between the housing and communal services and the end consumer. If you respond to tariff changes in a timely manner, deliberate deception is unlikely. If the quality of work or services is violated, you should complain immediately - this is the only way to get your money back for unfulfilled obligations.
How to calculate the tariff for housing maintenance and repairs?
It is quite possible to make such calculations yourself - this is a good way to check the integrity of the management organization.
The following calculation options are available:
- using formulas - they must be prescribed in the charter of the management company. Additionally, this information can be found in the primary source - Government Decree No. 354;
- submit a personal request to the settlement department of the institution that issues receipts for payment.
To use the formulas, you will need to have the following data:
- total area of the apartment;
- area of non-residential rooms;
- number of floors in the building;
- lifespan of the house;
- total area of non-residential premises in a high-rise building;
- type of communication.
Depending on the technical equipment of the house, other parameters may be required. They are on the official Internet pages of the Housing and Communal Services.
