The management company requires payment for utilities in advance. How legitimate is the Criminal Code's requirement? Advance payments for utilities Advance payments for housing and communal services
In a new building, it often speaks of low prices and larger area. However, when receiving the keys, all buyers face one unpleasant moment - they must pay for housing and communal services 3-6 months in advance, otherwise they will not be able to enter the long-awaited apartment. Why would you ask?
The buyer bears the burden of operation from the moment of signing the acceptance certificate of the apartment. Since the developer is not responsible for the apartment from the moment the transfer and acceptance certificate is signed, he cannot demand payment “in advance” either. Also, the developer cannot demand such payment for housing and communal services before signing this act. Theoretically, he can only demand compensation for documented expenses if he paid housing and communal services for the participant from the moment the apartment acceptance certificate was signed until the participant concluded an agreement with the management company. But as practice shows, this rarely happens.
As a rule, it is the HOA/management companies that require payment for housing and communal services. This is because these organizations may incur one-time costs that are higher than their normal monthly payments. However, this is a deliberately contestable point in the contract with organizations, since in this case there is a violation of a number of provisions of the Housing Code of the Russian Federation, the Law on the Protection of Consumer Rights and the Civil Code of the Russian Federation. These conclusions are confirmed by judicial practice.
“The developer cannot force the participant to pay more than what is provided by law. If the developer (or management company) insists on this, inquire about the grounds and contact the supervisory authorities (prosecutor’s office, commission for the protection of consumer rights), and then go to court,” advises Sofya Lebedeva, general director of the MIEL-Novostroiki company.
According to Article 153 of the Housing Code of the Russian Federation, the obligation to pay operating and utility costs for residential premises arises from the moment of registration of ownership. According to Maria Litinetskaya, general director of the Metrium Group company, this rule is applicable only in the event of a change of owner, that is, when buying and selling an apartment. “Shareholders under registered DDU make operational and utility payments from the moment of signing the apartment acceptance certificate, unless other terms are specified in the agreement. Members of the housing cooperative are obligated to pay for maintenance and utilities from the moment the apartment is transferred. Payments are collected either by the cooperative itself or by the operating company hired by it to maintain the house,” she says.
The management company insures itself
“By law, the owner is obliged to bear the burden of expenses, that is, the cost of paying housing and communal services for the maintenance of the property, upon registration of ownership of this property,” also notes Vera Bogucharova, Deputy Head of the Legal Service of the Est-a-Tet company. - In practice, the buyer of an apartment begins to bear expenses from the moment he received the apartment for actual use (for example, for repairs), it is quite logical that for actual use developers require payment in advance for several months, thereby compensating their expenses for “utilities” "
It is worth noting that employees of management companies ask to pay for utilities several months in advance because the period of settlement usually takes quite a long time, and the management company needs money in order to maintain the house. Of course, there is nothing criminal in these requirements, but management companies also have no legal grounds for this. The newcomer can simply refuse. He will still get the keys. Although it happens that he cannot receive it, since the management company may declare that you will not receive the keys until you pay. However, if the client knows the laws of the Russian Federation well, then he can “pump up his rights” in court. And we note that there are now a lot of such clients who are suing.
“Maybe many people go to court, but I know of extensive practice when the courts took the position of the developer or management company in this matter - provided that before receiving a certificate of ownership, the apartment was actually transferred to the buyer by deed,” says Vera Bogucharova. - Since in this case the maintenance of the house has already begun. And even though many residents have not completely moved into their apartments, they are using the living space, at a minimum, making repairs.”
“It was possible to win the court in cases where the developer violated the rights of the buyer,” notes Sergei Galsky, general director of MIG Real Estate Management Company. - For example, if initially the contract did not contain a clause on the need for prepayment of housing and communal services, but at the time of signing the acceptance certificate, the buyer was faced with such a requirement. An even more egregious case is if communications (water, gas, electricity) are not yet operational, but you already need to pay for them. Another possibility is that the period for which you need to make an advance payment is too long - more than 6 months. The most common payment method in the Moscow region is 4 months in advance.”
No surprises
If the participant purchased an apartment under the DDU or UDDU, it is necessary to indicate the inadmissibility of these points in accordance with the law and demand the transfer of keys without payment “in advance”. If the developer does not agree, he will have to write a statement to the prosecutor and subsequently go to court. The same should be done with management companies.
If the purchase of an apartment was under a different agreement (for example, a preliminary agreement), then much depends on its form and provisions. In this case, the developer may simply delay issuing keys and signing the relevant acts (until he receives a certificate of ownership), which, as a rule, does not suit clients. However, there is a way out - after paying such payments, the client can sue and get the money paid back.
We also note that this obligation - to pay for housing and communal services several months in advance - is spelled out in the contract. Therefore, this should not come as a surprise to the buyer. “It was not by chance that such a clause appeared in contracts - the developer is forced to write it down, since most people are sure that until ownership of the apartment is obtained, they can use utilities and energy resources for free,” says Sergei Galsky. - Having received the keys, most immediately begin to do, and this is a very energy-consuming activity. As a result, hefty bills for water and electricity fall on the developer, who, in turn, is forced to go to court and collect money from buyers for the energy consumed.”
I'm not the owner - I don't pay
Another problem is rent. While people are most often willing to pay for electricity, they are not willing to pay rent (or maintenance fees). “The logic here is simple: the buyer identifies the rent with the real estate tax, that is, he believes: “I’m not the owner - I don’t pay,” says Alexey Shmonov, CEO of the real estate portal Move.su . However, having received the keys and the acceptance certificate, the buyer assumes responsibility for the maintenance of the apartment: cleaning the territory, removing garbage, etc., that is, rent for him is the same relevant payment as paying for electricity and water supply.
If the buyer does not intend to carry out any work in the apartment and use utilities, then the easiest way for him not to pay the advance is to simply refrain from receiving the acceptance certificate and keys until the moment when ownership can be registered. The third way: stipulate in the contract the installation of meters and the obligation to pay for all utilities in accordance with their indicators - that is, for the energy actually used, from the moment of signing the acceptance certificate and receiving the keys to the apartment.
Filing a lawsuit against the Criminal Code
“There is a clearly defined list of services that the management company provides. You need to familiarize yourself with them before concluding a management contract,” advises Maria Litinetskaya. It makes sense to sue the management company if the owners of premises in an apartment building are dissatisfied with the quality of the services provided to them. In this case, they can hire another company. If a similar decision was made at the HOA meeting, then a special group of owners is created, which takes the initiative into its own hands. Next, this group carefully studies the agreement with the management company. The legal basis for termination is the expiration of its validity period, however, the contract can be terminated without waiting for the end of the validity period if there are violations on the part of the management company, for example, failure to perform any work or provision of services not in full or of inadequate quality. Then, with the help of a good lawyer, you can initiate termination of relations with the management company. After this, the initiative group selects a new operating company, prepares a new agreement, and at the next HOA meeting the procedure for signing it occurs.
It's all due to inattention
There is no point in accusing the developer and management company of blackmail, since you can understand them - they are afraid and therefore insure themselves in advance. It is beneficial for the developer, taking advantage of the moment and leverage on clients in the form of providing access to their apartments (providing keys), to collect the amount of utility bills for the entire period before choosing a management company and registering ownership, rather than every month coming into conflict with one or another individual shareholder .
“Usually, developers stipulate the need to pay such an amount immediately in equity participation agreements, which are concluded a long time before the actual construction of the house, and therefore shareholders do not particularly delve into this condition, considering it quite fair,” notes Evgeny Zimin, director of the company’s Legal Department Blackwood. “If the agreement has already been signed, then it is difficult to challenge this condition, although from a legal point of view it is quite controversial.”
As mentioned above, most of the problems of buyers is that few of them read the contract that they sign when buying an apartment, and then they are surprised. “There are often cases when buyers simply did not bother to read their contract carefully - and then are faced with an “unexpected” need to pay for something,” notes Sergei Galsky. “And we are not talking about “points in small letters,” but about completely normal texts of agreements.”
Neither officials nor experts in St. Petersburg yet know how to put into practice the federal idea of introducing advance payment of rent. However, Smolny assures that the “13th receipt” does not threaten the townspeople.
The head of the Russian government, Dmitry Medvedev, made a proposal to introduce a new system for paying receipts for housing and communal services on Thursday, November 14.
Now, according to Article 155 of the Housing Code of the Russian Federation, citizens have the right to pay rent by the 10th of the next month. At the initiative of the Prime Minister, it is proposed to consider the possibility of introducing amendments to the Housing Code, according to which payments will be collected in advance without fail no later than the 10th of the current month.
The reason for the innovation is simple. The overdue debt of all Russian consumers for utilities now amounts to 248.3 billion rubles. It is noteworthy that, according to the head of the State Duma Committee on Housing and Communal Services Galina Khovanskaya, the largest category of defaulters are institutions that cannot be disconnected. These include: clinics, hospitals, schools, kindergartens, etc. In St. Petersburg, the debt of all consumers exceeds 6.65 billion rubles. According to the Housing Committee of the city government, in 2013, 30.4 thousand lawsuits and applications for the issuance of court orders against persistent defaulters for housing and communal services were sent to district courts.
In this situation, the desire of resource providers to collect funds from conscientious payers (and according to statistics, up to 90% of Russian citizens now pay rent on time) is quite obvious.
As Valery Vogachev, deputy chairman of the Smolny Housing Committee, notes, now no one understands how the federal initiative will be implemented, since there are no official documents. However, he does not rule out that after switching to the new system, he will have to pay twice in one month: payments for the previous period and an advance for the future.
“Even if people pay both the advance and the main rent in one month, nothing bad will happen. The money won't go anywhere anyway. We have a lot of work ahead to implement the new system: we need to prepare if the federal center decides to use it,” he says.
So far, there are a lot of questions that officials cannot answer. For example, how will citizens in whose homes have metering devices be compensated for a possible overpayment for heat if the current month suddenly turns out to be warmer than predicted. And vice versa: how will residents have to pay extra for the resource if the temperature is lower than expected. There are even more questions regarding payment for hot and cold water if a citizen goes on vacation or on a long business trip. According to Valery Vogachev, in such a situation it is possible to adjust the payment next month. “No one will issue second receipts to citizens for one month. The same situation as with the “13th receipt” will not happen,” he assures.
The experts interviewed by BN also do not know how to implement the initiative in practice, and in principle they doubt its feasibility.
“Now no one prohibits citizens from paying rent in advance on a voluntary basis. Those who consider this payment option acceptable for themselves have been using this method for a long time,” says State Duma deputy Oksana Dmitrieva. She is confident that the proposed amendments to the Housing Code will only infringe on the rights of citizens as consumers, and the initiative will not help fight debtors.
“Those who do not pay now will not make payments in the future. And in order to impose sanctions on them for advance payments, financial legislation will have to be changed. In my opinion, the initiative is beneficial only to resource suppliers, as it can increase their impunity. And now it is difficult to obtain compensation from them for poor-quality services or their non-provision, for example, lack of heating in winter, and with the introduction of an advance system this will become even more difficult,” Dmitrieva emphasizes.
However, the head of the council of the Association of Managing and Operating Organizations in the Housing Sector, Evgeny Purgin, believes that the new initiative will not cause rejection among the population if payments really do not increase, as the authorities promise. “Essentially, we are being offered to pay rent for the same 12 months, albeit a little earlier,” he notes.
Federal officials must develop proposals for introducing a new system for paying receipts by the beginning of December this year. Then it will become clear when and how exactly citizens will be offered to make payments in advance.
According to the article “Amounts of advance payments for procurement of federal institutions in 2018” Is it possible to prepay for utilities (heating, water, electricity) and in what amount?
Answer
For heating and water supply, a “general” advance payment amount may be provided. In the amount of no more than 30 percent of the contract amount, but not more than the limits of budget obligations.
For electricity, different rules apply if the energy sales company is a supplier of last resort, namely 70 percent of the contract amount (monthly transfer). Reason: the procedure for advance payment of energy supply contracts in the amount of 70 percent was established by the Government of the Russian Federation in Resolution No. 442 dated May 4, 2012.
In what proportion and by what date of the month the transfer should be, see the above-mentioned resolution in the file.
Rationale
Does the energy supply company have the right to establish an advance of 70 percent in the energy supply contract?
Right if the energy sales company is a supplier of last resort. Reason: the procedure for advance payment of energy supply contracts in the amount of 70 percent is established by the Basic Provisions for the Functioning of Retail Electricity Markets, which were approved by the Government of the Russian Federation in Resolution No. 442 dated May 4, 2012.
Decree of the Government of the Russian Federation dated May 4, 2012 No. 442
On the functioning of retail electricity markets, complete and (or) partial restrictions on the mode of consumption of electrical energy
82. Unless otherwise established by paragraph 81 of this document, consumers (buyers) purchasing electrical energy from the guaranteeing supplier pay for electrical energy (power) to the guaranteeing supplier in the following order, except in cases where later deadlines are established by agreement with the guaranteeing supplier:
30 percent of the cost of electrical energy (power) in the payable purchase volume in the month for which payment is made is paid before the 10th day of this month;
40 percent of the cost of electrical energy (power) in the payable purchase volume in the month for which payment is made is paid before the 25th day of this month;
the cost of the volume of purchase of electrical energy (power) in the month for which payment is made, minus the funds contributed by the consumer (buyer) as payment for electrical energy (power) during this month, is paid before the 18th day of the month following the month, for which payment is made. If the amount of the advance payment exceeds the cost of the volume of purchase of electrical energy (power) in the month for which payment is made, the excess amount paid is counted against the payment for the month following the month in which such payment was made.
If an energy supply agreement (purchase and sale (supply) of electrical energy (power)) is concluded by a supplier of last resort with an energy sales (energy supply) organization, it provides for the condition of advance payment of 50 percent of the cost of electrical energy (power) in the payable purchase volume per month , for which payment is made, until the 1st day of this month, unless otherwise established by the energy supply agreement (purchase and sale (supply) agreement of electrical energy (power)).
By an agreement between the guaranteeing supplier and the energy sales (energy supply) organization purchasing electricity from it, this condition can be replaced in whole or in part by the condition of providing the guaranteeing supplier with security for the fulfillment of payment obligations under the contract.
Amounts of advance payments for procurement by federal institutions in 2018
Advance payments under contracts for federal PBS, budgetary and autonomous institutions are limited. See the table in what amounts the institution has the right to set an advance and when you can pay 100 percent.
In contracts that provide for staged execution, do not provide for the payment of an advance at the last stage. An exception is contracts for which the advance amount is 100 percent, and also if the contract is subject to treasury support. This is discussed in paragraph 19 of Government Resolution No. 1496 dated December 9, 2017.
Attention: after December 1, 2018, it is impossible to conclude contracts that provide for the payment of an advance in 2018 or payment for work (services) with a completion period of more than one month. The exception is contracts that are concluded by decision of the Government and for state defense orders. This is stated in paragraph 14 of Government Resolution No. 1496 dated December 9, 2017.
Those who are willing to pay in advance will pay for housing and communal services at reduced rates, and debtors will not be able to sell their apartment. A bill on this has been sent to the government, Deputy Minister of Construction and Housing and Communal Services Andrei Chibis told RG.
The size of the discount will be determined in each specific case by agreement between the apartment owners and the management company (MC). Relations between the management company and resource supply organizations will be built in a similar way - in order to receive a bonus, the management company must pay for water and heat supply services, as well as electricity supplies, in a timely manner.
Now management companies can only give discounts on housing services (maintenance and repair of housing), that is, on those that they themselves provide, Andrei Chibis explained. The amount of payment for utility services (water, heat, electricity, etc.) is calculated based on the volume of resource consumption and the tariff established by the state, and by law cannot be changed.
Now management organizations will be able to provide discounts to bona fide owners, while stimulating advance payment, and launch other consumer incentive programs.
On the other hand, debtor citizens should think about their behavior. The amount of penalties for debts may almost double - from 1/300 to 1/170 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay. Today this corresponds to 17 percent per annum of a standard market loan.
In other words, defaulters are given a choice: either pay on time, or at any time, but at a higher price. At the same time, the apartment on which the debt “hangs” can neither be sold nor obtained a mortgage loan against it. Transactions with “bad” apartments will not pass state registration.
“In Russia, approximately 5 percent of the population are chronic debtors for housing and communal services,” said Andrei Chibis. “A third of them are quite wealthy people who forget or are simply lazy to pay for housing and communal services on time. Such negligence, of course, must be fought.” As follows from the documents provided by the Ministry of Construction to RG, it will be more difficult for ineffective and openly thieving management companies that take advantage of the inertia of apartment owners. If such a company has accumulated a 3-month debt to the utility service provider, the latter will be able to initiate the residents’ decision to change the company.
The bill also simplifies the procedure for holding general meetings of owners in apartment buildings. Now each of them will be able to demand such a meeting, and it will be much easier to ensure a 50 percent quorum. An in-person and absentee form of holding meetings is being introduced, in which one can cast one’s vote in any way, even by e-mail (currently only in-person voting is possible). This means that making decisions and working together to maintain the house in good condition will be much easier.
Help "RG"
In 2000, according to Rosstat, the debt to pay for housing and communal services exceeded 17 billion rubles, which is almost 13 percent of all accrued payments.
In 2012, debts already reached 104.6 billion. Which amounted to only 6.4 percent of the “total receipt.”