Residents of apartment buildings do not always know the full range of responsibilities assigned to the management company.
The standard formulation “housing maintenance and repair services” actually includes a very wide range of works and services.
And due to the ignorance of the owners of residential premises, unscrupulous management companies do not always fulfill all their obligations In front of them.
Then the residents of the apartment building have a misunderstanding about where the considerable sums regularly sent to the management organization are spent.
To prevent such questions from arising, you need to clearly understand what exactly is included in the concepts of “house management” and “housing maintenance”, and also know how you can monitor the performance of the duties of the management company in the housing and communal services sector.
What is a management company?
The management company is a legal entity.
The main activity of such organizations is the provision of services for the maintenance of common property, organizing uninterrupted equipment with the necessary resources and maintaining an appropriate level of technical and sanitary condition.
Management companies are divided into three types:
- managers;
- hybrid;
- operational.
Managing organizations They independently engage only in the management and maintenance of common property. For technical and sanitary maintenance, as well as provision to residents, they engage third-party organizations and persons on a contractual basis.
Hybrid companies independently carry out management, operation, ensure proper sanitary and technical condition, provide utilities and other services.
Operational work on the basis of a contract concluded directly with the owners of the apartments or represented by the board or. They provide services for the operation, as well as technical and sanitary maintenance of an apartment building.
How is the work of the Criminal Code regulated?
The list of regulations governing and regulating the work of management organizations is quite extensive.
The main ones:
Rights and obligations of the management company
All rights and obligations for the maintenance of an apartment building assigned to the management company can be divided into two categories:
- operation and repair work;
- organizational and management services.
TO operation and repair work relate:
Under organizational and management services means:
- Provision and control.
- Identification of unscrupulous residents and citizens using resources bypassing installed accounting devices.
- Interaction with enterprises responsible for public services and monitoring their proper quality.
- Storage and ensuring the integrity of technical and other documentation for an apartment building.
- Accounting for residents of the house, including those living on the basis.
- Organizing meetings of residents, providing reports on the work done. Such meetings must be held at least once a year.
- Bringing new ones to the owners.
In turn, the management organization has the right:
How is the work of the management company organized?
There are two options for organizing the maintenance and management of an apartment building.
First option, when the management company actually consists of a manager and a group of managers. They solve organizational issues, make some decisions, and solve current problems.
And to carry out repair work, clean common areas, maintain common property and perform other work, third-party organizations are involved.
At the same time, the management company is responsible for all services provided and work performed.
In the second option The organization fully assumes all responsibilities for management, maintenance and operation.
To do this, the company must have a larger staff of workers, as well as the availability of the necessary equipment and machinery. But at the same time, the implementation of work is subject to more careful control.
Procedure for reporting to residents
The procedure for the management company's reporting to the owners of residential premises is strictly regulated by the provisions of the Housing Code of the Russian Federation. In accordance with it, the governing body is required to submit such a report annually before the end of the first quarter of the following reporting year.
A different procedure and time frame may be established.
The report should be as complete, comprehensive and comprehensive as possible. It should reflect the status of all the main indicators of the company’s housing maintenance activities during the year. He also must contain a work plan for the next year aimed at improving living conditions and landscaping of the territory.
The report must be submitted to the owners for approval at a general meeting of residents.
Residents' control over the activities of the management company
Since the owners of residential premises, either personally or through the board, hire a management company to provide specific services on a reimbursable basis, it is natural for residents to want to control the quality of the services provided to them.
This right is granted to them by the Housing Code of the Russian Federation.
Residents have the right to control:
Resolution of disputes
Unfortunately, the statistics are such that residents are not always satisfied with the work of the company entrusted with managing the house. And the management companies themselves do not always treat their responsibilities conscientiously.
The reasons for a dispute with managers may be different. For example, failure to provide services specified in the contract or failure to perform routine repairs.
In any case, if the management company does not fulfill its duties we need to start with peace negotiations and first of all contact its management and try to find out the reasons.
If such actions do not lead to anything, then you cannot do without contacting the relevant authorities. These include:
- Rospotrebnadzor;
- Housing Inspection;
- courts.
But in any case, you need to start your appeal with the management company itself. To her a written complaint must be submitted indicating and detailing all unfulfilled obligations or improperly provided services.
If there is no response to the submitted claim, it makes sense to contact Rospotrebnadzor and the Housing Inspectorate. These organizations are competent in resolving controversial issues relating to.
If, in the process of resolving a controversial situation, more serious violations in the maintenance and operation of the house were discovered, then it is necessary to send a corresponding application to the prosecutor's office or judicial authorities to a management company, the sample of which does not have a strictly approved form.
The responsibilities of a management company for maintaining housing and managing the common property of the owners of an apartment building are quite a heavy burden. This work has many subtleties and nuances.
Apartment owners must clearly understand the entire process and procedure for organizing management. Only then will the management organization provide services in full and of proper quality.
Video: What to do if the management company does not fulfill its duties?
The report talks about an experiment conducted by the administration of the Republic of Yakutia. In order to combat residents’ dissatisfaction with the work of the management company, the authorities decided to conduct a rating based on the performance indicators of these organizations.
Now it will be much easier for residents to decide on the organization to entrust with the management of their apartment building and avoid disputes with the management of the management company and poor quality of their services.
It's no secret that the desire for comfort has always been inherent in human nature. Each of us, returning home after a hard day, wants to see a clean courtyard and entrance, and go up to our apartment using a working elevator. To make all these desires come true, the owners need to decide on the choice of management company. Where to contact? Will the services provided be of high quality and what to do in case of disappointment? Before answering these questions, it is necessary to understand the very concept of “management organization”.
So, the management organization (housing and communal services) is a legal entity to which the owners of apartment buildings are entrusted with responsibilities for their maintenance, namely, timely and guaranteed maintenance of cleanliness in the entrances and the surrounding area, ensuring the serviceability of all utility networks and structures. Simply put, this is a person or group of people who manages an apartment building.
Relations between homeowners and the management company are built on the basis of an agreement concluded between them, which stipulates the rights and obligations of the parties. Its legal definition is given in Part 2 of Article 162 of the Housing Code of the Russian Federation. Thus, under an agreement for the management of an apartment building, one party (the management organization), on the instructions of the other party (the owners of the premises in the apartment building, the management bodies of a homeowners’ association or the management bodies of a housing cooperative or the management bodies of another specialized consumer cooperative), undertakes to provide services for a fee within an agreed period of time. services and carry out work on 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, and carry out other activities aimed at achieving the goals of managing an apartment building.
Thus, the management company, within a specified period and under certain conditions, must ensure the repair and maintenance of the house, and residents, in turn, have the right to:
— receipt of information about services provided (certificate of completion) within five working days from the date of submission of the request;
— checking the quality of services provided through examination;
— eliminating the consequences of poor quality work.
It is important to note that the management organization is responsible for the performance of its duties in accordance with the legislation of the Russian Federation. If you doubt the correctness of your choice, you can always exercise your legal right to change the management company. The most convenient time to do this is when the contract expires (it usually ranges from 1 to 5 years). If the deadline for such an opportunity is long, and you are not satisfied with the manager’s work right now, you need to terminate the contract. Usually the document itself spells out the procedure and conditions for termination - then there will be no problems. If your agreement does not provide for this, you must take measures prescribed by law, for example, create a homeowners association. This decision, according to the Housing Code, entails termination of the contract with the unwanted manager.
In reality, it is quite difficult to untie relations with an unscrupulous management organization. Here, judicial authorities or consumer protection societies can come to the aid of residents. In addition, there are private companies that are ready to relieve owners of any problems in the housing and communal services sector for a significant fee.
Obviously, whether to seek services from a management organization or not is a controversial issue, largely due to the increasing incidence of fraud. This is mainly expressed in the fact that the money transferred to pay for utility bills does not reach the resource supply companies. By abusing the trust of citizens, the manager can spend the population’s money on his own needs for quite a long time. Such stories end rather sadly: the residents suffer exorbitant losses, and, as a rule, no ending can be found. In this regard, regional authorities are increasingly launching programs to create unified settlement centers. Residents of those regions where such sanctions were not imposed should approach the issue of choosing a manager more carefully, or abandon it altogether.
Is it worth introducing an HOA?
So, if you decide to seek the services of a management company, you should consider all possible options. As mentioned above, residents are given the choice of the second party when concluding an agreement with the manager: these are either the owners of the premises themselves, with each of whom an agreement must be concluded on equal terms, or a homeowners association (HOA) or a housing cooperative (HC). This method of management is elected by residents at a general meeting. In this case, the partnership itself will interact with the management company through its bodies, essentially performing the role of an intermediary. From now on, residents will make all important decisions together. It must be taken into account that the management method can change at any time by the decision of the owners themselves.
The question of whether it is worth creating an HOA can be answered by weighing all the pros and cons of this provision. Among its obvious advantages is that you can always take part in decision-making on the management of general house issues, because the partnership is obliged to take into account the opinions of residents. However, it may happen that the advantage is not in your favor - in this case, you will have to come to terms with the position of the majority.
We must not forget that there is another option - to do it on our own, without turning to the help of the HOA or the management organization. If residents show an active civic position and a passionate interest in the life of their home, then everything will almost certainly succeed, and cleanliness and order will reign in the entrances. However, knowing the mentality of our citizens, one can imagine what lack of initiative in managing, say, a 100-200-apartment building usually leads to. In such a situation, organized control by the HOA can become a guarantor of some noticeable order in your home.
Another important and positive feature of entering an HOA is obtaining the legal right to conduct any type of business activity, and, as a result, receiving income from it. What does it mean? And the fact, for example, that members of the partnership can make minor repairs on their own, without attracting paid labor from outside. In addition, if the house has free non-residential premises - basements, for example, or facades suitable for advertising, residents on behalf of the partnership can rent them out. The funds received can be used to improve the local landscape and other public areas.
One of the main discouraging factors for creating an HOA is the need to pay membership fees. It is due to the fact that the work of the members of the partnership, as well as the services of hired accountants and lawyers, must be paid. Thus, it becomes obvious that if you want to receive competent management of your property, you must be prepared to pay extra for these services or take full management responsibility upon yourself.
The unpleasant fact is that some members of the HOA, like the heads of management companies, do not always fulfill their duties in good faith. So, in January of this year, the Yuzhno-Sakhalinsk City Court opened a criminal case against the chairman of one of the HOAs, who stole and embezzled funds belonging to residents of two apartment buildings. As it turned out during the investigation, the defendant rented out the property of the house without the knowledge of the owners, and transferred the proceeds to the account of his company and spent it on purposes not related to the management of common property. And, unfortunately, there are enough such cases in different regions of our country. Guided by all of the above, it remains to emphasize that the process of choosing a method of managing property is an unpredictable and serious matter, in which responsibility lies with each of us.
- Carry out proper management of the apartment building - engage in its technical and sanitary improvement.
- Providing residents with high-quality utilities in a timely manner, removing garbage on time, cleaning yards and entrances.
- Provide residents with a report on the work performed and proposed activities.
A list of detailed rights and obligations must be specified in the management agreement for an apartment building - in accordance with Art. 162 Housing Code of the Russian Federation.
Conclusion of an agreement with the owners
Since July 1, 2015, management companies have been operating on the basis of a license issued by housing and communal supervision authorities.
The management agreement for an apartment building is concluded between the owners of housing in an apartment building and the management organization for a period of no more than 5 years.
If at the end of the period neither party has expressed a desire to terminate the contract, then it is considered extended for the same period.
The main elements of the deal will be:
- information about the parties - the MKD council and the management organization;
- a list of all necessary works and utilities that will be provided by the management organization;
- the cost of paying for the services of an intermediary organization, prices for utilities;
- the procedure for changing the scope of work and services provided;
- reporting procedure.
The agreement also specifies the procedure for monitoring the company's activities.
The agreement is considered concluded if it is signed by 50% of the owners of apartments in a multi-storey building.
Submitting a report
The claim is drawn up in any form, but must contain all the shortcomings in the work of the management company.
An administrative procedural decision made not in favor of the owners does not mean that the latter must put up with the inaction of the management company.
You can go to court and terminate the management agreement for the apartment building. This can also be done unilaterally.
Where to contact?
First, you should send a complaint to the management company. Next, you should contact the authorities of Rospotrebnadzor and the housing inspection.
The rights of tenants are protected by the consumer protection law.
Responsibility
The management company bears property liability for irrational spending of funds on the management of apartment buildings.
If the company committed 2 offenses, then it is deprived of its license and does not have the right to carry out activities in the provision of housing and communal services.
Is it possible to change the management company?
You can by holding a general meeting of homeowners. It can be carried out in full-time or part-time form. It is necessary that the majority of homeowners vote in favor of changing the management company.
One copy of the minutes is sent to the management of the management company, which after the meeting is obliged to transfer the entire technical and financial company to the new company.
Residents should also take care of concluding a contract for the provision of utilities with the new organization.
A problem may arise if the previous management company delays the transfer of documents to its newly elected colleagues.
Possible - falsification of the minutes of the residents' meeting and accounting documentation. More complex cases are subject to judicial review.
The housing and communal services management organization is an intermediary whose work should be understandable to residents.
The company is responsible for the technical condition of the house entrusted to it and the provision of high-quality utilities. Residents can control the work of such an organization personally or through elected bodies.
In the video about the conclusion of an agreement between the owners and the management company
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Many of us have heard the concept of “management company” or “management organization”. What is it? What are the legal, financial and economic aspects of its activities?
Let's start with a principle that is known and understood by everyone. 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.
It remains only to find out how you can achieve its implementation and obtain a positive result in reality. First of all, to do this, you need to determine who and how will manage the house in which the premises you own are located.
Since the entry into force of the new Housing Code of the Russian Federation, the owners of premises in an apartment building have been entrusted with the responsibility of choosing a method of managing an apartment building. In this case, an apartment building can be managed by only one management organization.
In accordance with Article 161 of the Housing Code of the Russian Federation, it is these persons who are required to choose one of the proposed options as a management method.
- Direct management of premises owners in an apartment building. In this case, the owners of the premises themselves enter into contracts for utility and housing services with providers of these services, and also independently pay for these services in accordance with the concluded contracts.
- Homeowners Association Management or a housing cooperative or other specialized consumer cooperative. In this case, an appropriate legal entity must be registered, acting on behalf of all homeowners, and legal relations with suppliers of necessary services are built on the basis of agreements between the newly created legal entity and service providers. In this case, payment for services rendered and supplied will be made by the owners of the premises to the existing legal entity (HOA or cooperative).
- Management of the management organization. If the owners of the premises choose this particular management method, their attention must be drawn to a number of specific factors. This work is devoted to consideration of such moments.
Legal status of the management company, its powers, functioning and responsibility
So, to begin with, let’s define that a management company, like any other commercial organization, is a legal entity created for the purpose of making a profit. And this provision should not cause negative emotions among the uninitiated for the following reasons.
The activities of a management company are a variant of entrepreneurial activity. In turn, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons ( Art. 2 Civil Code of the Russian Federation).
An important fact is that, in accordance with Decree of the Government of the Russian Federation of February 6, 2006 N 75 Both legal entities and individual entrepreneurs can act as a management company.
Thus, a management company or organization is a legal entity, regardless of its legal form, or an individual entrepreneur that manages an apartment building.
The functions of the management company are as follows: it must, within the terms and conditions specified in the management agreement, ensure the maintenance and repair of residential buildings in accordance with the requirements for residential buildings established by technical regulations.
Owners of premises, in accordance with the terms of the management agreement, have the right to:
- receive from responsible persons no later than five working days from the date of application information on the lists, volumes, quality and frequency of services provided and (or) work performed. The specified period in the contract may be reduced;
- check the volume, quality and frequency of provision of services and performance of work (including by conducting appropriate examination);
- require responsible persons to eliminate identified defects and verify the completeness and timeliness of their elimination.
At the same time, management organizations are responsible to the owners of premises for violation of their obligations and are responsible for the proper maintenance of common property in accordance with the legislation of the Russian Federation and the contract. Unless otherwise established by the management agreement for an apartment building, this legal entity annually, during the first quarter of the current year, submits to the owners of premises in the apartment building a report on the implementation of the management agreement for the previous year.
The management company is also responsible for damage caused to the apartment building, the owners of its residential premises and third parties injured as a result of improper operation of the housing facility, as well as as a result of the actions or inaction of the management company, in the amount of damage caused.
In addition, the management company must take into account that the method of managing an apartment building is chosen at a general meeting of owners of premises in the apartment building and can be changed at any time based on the decision of the meeting. If the services provided and the work performed do not meet the requirements of the owners of the premises, they can exercise the right granted to them and change the management method. But it must be taken into account that the termination of the management contract must be carried out in accordance with the norms of civil law. The decision of the general meeting on the choice of management method is mandatory for all owners of premises in an apartment building.
Contractual relations of the management company, the amount of fees for the maintenance and repair of common property
The relationship between the management company and the owners of premises in an apartment building is based on a management agreement for the apartment building.
That is, the powers of the management company to represent the interests of these persons are contained in this agreement. Since a contract is concluded if an agreement is reached between the parties on all essential terms of the contract ( Art. 432 Civil Code of the Russian Federation).
An exception is a management agreement concluded through a competition. It will be discussed below.
When choosing a management organization by a general meeting of owners of premises in an apartment building,
The management agreement is concluded in writing:
The terms of the agreement arise from the decision of the general meeting. That is, the legal document for concluding an agreement is the minutes of the general meeting. Everything else is secondary.
Under an agreement for the management of an apartment building, one party (the management organization), on the instructions of the other party (the owners of the premises in the apartment building, the management bodies of a homeowners' association, or the management bodies of a housing cooperative, or the management bodies of another specialized consumer cooperative), within an agreed period for a fee, undertakes to:
- provide services and perform work for the proper maintenance and repair of common property in such a house;
- provide utility services to premises owners;
- carry out other activities aimed at achieving the goals of managing an apartment building.
Thus, the management company, represented by its representative, can enter into an agreement both directly with each owner of the premises in the house at the same time, and with the management bodies of the homeowners’ association or with the management bodies of a housing cooperative or other specialized consumer cooperative.
This agreement has specific requirements.
The contract must indicate :
- the composition of the common property of the apartment building in respect of which management will be carried out, and the address, in this case, you need to pay attention to the fact that the management company should not take this object on its balance sheet, since it is in shared ownership;
- a list of services and works for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the management organization;
- the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and the amount of payment for utilities, as well as the procedure for making such payment;
- the procedure for monitoring the management organization’s fulfillment of its obligations under the management agreement.
It is necessary to note that an essential condition, the content of which needs to be discussed in more detail, is, in particular, the list of those services and works that will be provided and performed by the management company or third parties in accordance with agreements concluded by the management company for the maintenance and repair of common property in an apartment building; the procedure for changing such a list; the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises, as well as the procedure for making such payment.
The management agreement for an apartment building is concluded for a period of no less than one year and no more than five years. The deadline for the commencement of fulfillment of the obligations of the management organization (unless a different period is established by agreement of the parties upon its conclusion) is no later than 30 days from the date of its signing. In addition, by concluding a management agreement for an apartment building with a management organization in accordance with Part 5 of Article 161 and Article 162 of the Housing Code of the Russian Federation the proper maintenance of common property is ensured by the owners of the premises.
After all, one of the responsibilities of the owners of premises in the house is the obligation to maintain the common property of the house, since the owners of the premises are obliged to bear the burden of expenses for maintaining the common property in proportion to their shares in the right of common ownership of this property. Such an obligation must be reflected in the house management agreement.
In the case of management of an apartment building by a management organization, it is implemented by payment by the specified persons for the maintenance and repair of residential premises in the apartment building.
When determining the amount of payment for the maintenance and repair of residential premises of the owners of premises who have chosen a management organization to manage an apartment building, the decision of the general meeting of owners of premises in such a building is made for a period of at least one year, taking into account the proposals of the management organization. The specified fee amount is set the same for all owners of premises.
Proposals from the management organization on the list, volume and quality of services and work must take into account the composition, design features, degree of physical wear and tear and technical condition of the common property, as well as the geodetic and climatic conditions of the location of the apartment building.
In accordance with clause 34 of the Decree of the Government of the Russian Federation of August 13, 2006 N 491, if the owners of the premises have not made a decision on the method of managing the apartment building, the amount of payment for the maintenance and repair of residential premises paid by the owners of the premises is established by the local government body (in the constituent entities of the Russian Federation - the federal cities of Moscow and St. Petersburg - by the state authorities of the corresponding subject of the Russian Federation) based on the results an open competition held in accordance with the established procedure, equal to the price of the management agreement for an apartment building. The price of the management agreement for an apartment building is set equal to the amount of payment for the maintenance and repair of residential premises specified in the tender documentation.
When managing an apartment building by a management organization, tenants of premises that are in state or municipal ownership, in accordance with Part 4 of Article 155 of the Housing Code of the Russian Federation bear the costs of maintaining and repairing common property, taking into account payment for the maintenance and repair of residential premises by tenants of residential premises of the state or municipal housing stock. If the amount of the fee paid by the tenants of such residential premises is less than the amount of the fee established in the management agreement, the remaining part of the fee is paid by the landlord of the specified residential premises in a manner agreed upon with the management organization.
Certain types of contracts, concluded, for example, for the management of an apartment building, where all premises are owned by the Russian Federation, a constituent entity of the Russian Federation or a municipal entity, have specific requirements. The procedure for managing it is established respectively by the Government of the Russian Federation, the state authority of the constituent entity of the Russian Federation and the local government body. In this case, the management of an apartment building is carried out by concluding a management agreement for this building with a management organization selected based on the results of an open competition or, if such a competition is declared invalid in accordance with the law, without holding such a competition.
Contract for managing a house by a management company may be changed and terminated in the manner determined by the civil legislation of the Russian Federation.
The grounds for changing and terminating the management agreement for an apartment building are provided Art. 450 Civil Code of the Russian Federation. These actions are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or an agreement. At the request of one of the parties, the contract can be changed or terminated by a court decision only:
- in case of a significant breach of contract by the other party;
- in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.
In the event of a unilateral refusal to fulfill the contract in whole or in part, when such refusal is permitted by law or by agreement of the parties, the contract is considered respectively terminated or modified. As a right to refuse to execute a management agreement, one can accept the right of the owners of premises to change the method of managing an apartment building at any time by making an appropriate decision at a general meeting of owners of premises in an apartment building.
The management organization, 30 days before the termination of the management agreement for an apartment building, is obliged to transfer the technical documentation for the apartment building and other documents related to the management of such a house to the newly selected management organization, a homeowners' association or a housing cooperative or other specialized consumer cooperative, or, in the case of direct management of the building by the owners premises therein, to one of these owners, indicated in the decision of the general meeting such owners about the choice of how to manage this house, or, if such an owner is not specified, to any owner of the premises in this house.
But if the period for which the management agreement was concluded has expired, but there is no application from one of the parties to terminate the management agreement for an apartment building, then upon expiration of the validity period such an agreement is considered extended for the same period and on the same conditions as were provided for in such an agreement.
The relationship between the management company and the owners of premises in the house, the procedure for concluding a management agreement, and other related issues characterize the activities of the management company only on one side. On the other hand, there is the relationship of this organization directly with the suppliers of those services and work that will be performed at the facility. Agreements with heat supply, water supply and other organizations necessary to ensure the life of an apartment building are concluded by the management organization on the basis of the powers contained in the management agreement.
Pros and cons of concluding a management agreement for an apartment building
We propose to consider how the forms of management of an apartment building provided for by the Housing Code of the Russian Federation are fundamentally different and what the consequences may be if the owners of the premises have chosen a management company.
A homeowners' association, one or another type of cooperative, or a management company are, as mentioned earlier, legal entities. That is, they have the right to enter into contracts for the provision of utility services, open current accounts, and hire certain employees. If the owners of the premises choose a direct method of management, related questions arise, namely, how to hire the necessary specialists (for example, an accountant, a manager). By and large, these functions become a voluntary-compulsory responsibility of those individuals who have the necessary skills. But it is very difficult to hold them responsible for the violations they committed. It is also unclear whether their labor will be officially paid, taxes will be calculated, and their length of service will be calculated.
On December 30, 2004, the Law “On the basis for regulating tariffs of public utility organizations” was adopted, which came into force on January 1, 2006. According to this Law, in the housing sector, consumers of goods and services of these organizations in the field of electricity, heat, water supply, sanitation, disposal (disposal) of solid household waste are, in particular, in apartment buildings - homeowners' associations, housing cooperatives, housing construction cooperatives and others specialized consumer cooperatives, as well as management organizations. It is they who purchase the above goods and services to provide utilities to persons living in each specific apartment building, or directly to the owners of premises in the apartment building. That is, if you are the owner of residential premises in an apartment building, where, by decision of the majority of owners, to which you are not one, management is carried out by a partnership, cooperative or management company, you cannot enter into contracts directly, bypassing them. In this case, contracts for public services will be concluded directly with the specified legal entities, and they can already conclude them with the owners of the apartments.
Thus, a management company, along with a partnership or cooperative, has a number of advantages over direct management. The management company, as a legal entity, carries out its activities in accordance with the contract, builds its relationships with suppliers of services and work, without each time referring to the opinion of the majority of premises owners.
The main advantage of a management company over other management methods is the following. By definition, a management company must specialize in providing specific types of services. That is, the performance of her duties must be carried out at an appropriate professional level.
But this method of control also has a number of disadvantages. The main one is that at the moment there are not enough reliable management companies, there is no practice in their activities, and the circle of professionals in this industry has not been formed. Therefore, there is a possibility of fraud at this stage. In addition, after a management agreement has been concluded, the owners of the premises simply do not have the opportunity to influence decision-making.
The procedure for exercising the rights of local governments to choose a management company for an apartment building
Once again, we draw the attention of the owners of premises in an apartment building that the Housing Code of the Russian Federation obliges them to voluntarily, within the established time frame, resolve the issue of how to manage the house.
Let's assume the following situation occurs. Time passes, and the owners of premises in an apartment building do not take any action to choose a way to manage this building. As it becomes clear from practice, this is the rule rather than the exception.
Meanwhile, the deadline given by the legislator for a voluntary resolution of this issue is slowly expiring. Let us draw the attention of premises owners to the fact that initially, from the moment the Housing Code of the Russian Federation came into force (March 1, 2005), a one-year period was established, before the expiration of which the owners of premises must hold a meeting and choose a form of management of an apartment building (that is, until March 1, 2006 d.) And if such a meeting was not held or the corresponding decision was not made at it, the right to choose a management company is acquired by the local government body. In this case, he has the right to hold a competition between management companies.
But the Federal Law of December 26, 2005 N 184-FZ was amended, and this period was extended until January 1, 2007. In addition, on February 6, 2006, the Government of the Russian Federation in development of the provisions Article 161 of the Housing Code of the Russian Federation approved the Rules for holding an open competition by a local government body to select a management organization to manage an apartment building.
Federal Law No. 251-FZ of December 29, 2006 “On Amendments to the Housing Code of the Russian Federation and Article 18 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation” once again extended the period for local government bodies to hold open competitions for the selection of management organizations. Now the cutoff date has been announced as January 1, 2008. This means that starting from January 2008, local governments can hold open competitions for the selection of management organizations, completing them before May 1, 2008.
The local government body, in accordance with Article 161 of the Housing Code of the Russian Federation, in the manner established by the Government of the Russian Federation, must hold an open competition for the selection of a management organization, if within a year before the date of the said competition, the owners of premises in an apartment building have not chosen a management method or if a decision has been made to select There was no way to manage this house.
Thus, if the specified choice is not planned in your home, and also if:
The owners of premises in an apartment building have not chosen the method of managing this building, including in the following cases:
- the indicated persons did not hold a general meeting on the issue of choosing a method of managing an apartment building or a decision on choosing a method of managing an apartment building was not made;
- after two months after the entry into force of a court decision declaring invalid the general meeting of owners of premises in an apartment building on the issue of choosing a method of managing an apartment building, a repeat general meeting was not held or a decision on choosing a method of managing an apartment building was not made;
The decision made by the owners of premises in an apartment building to choose a method of managing the house was not implemented, including in the following cases:
- the majority of owners of premises in an apartment building have not entered into agreements provided for in Article 164 of the Housing Code of the Russian Federation;
- the owners of premises in an apartment building did not send to the authorized federal executive body the documents necessary for state registration of a homeowners' association or a housing cooperative or other specialized consumer cooperative;
- management agreements for an apartment building, provided for in Article 162 of the Housing Code of the Russian Federation, have not been concluded;
then you, as the owner of a premises in an apartment building, need to know the following.
The competition is a form of bidding, the winner of which is the participant who offers, for a specified amount of payment for the maintenance and repair of residential premises, within one year to carry out the largest amount of work and services for the maintenance and repair of the common property of the owners of premises in an apartment building, the right to manage which there is a competition.
That is, when announcing a competition, its organizer offers applicants a limited amount of funding, into which it is necessary to “pack” the largest possible volume of work and services offered by the applicant (starting with cleaning the land plot, preparing the house for seasonal use and ending with cleaning and wet cleaning of garbage chambers and dusting from lamp caps, window sills in common areas). The full list of works is specified in the List of Mandatory Works and Services for the Maintenance and Repair of the Common Property of the Owners of Premises in an Apartment Building, which is the Subject of the Competition.
As a digression, I note that it may make sense to use this document when concluding an agreement for the management of an apartment building with a management company when determining the volume of work to be performed, also in the event that this agreement is not concluded through a competition.
It is also important that although the competition is open in terms of the composition of participants and the form of application, a specialized organization cannot be a participant in the competition. This provision does not infringe on the rights of these legal entities. It’s just that if this restriction is lifted, then these organizations will become monopolists in the management of apartment buildings due to the fact that they can independently set prices for the services they provide, and thus the holding of a competition, and the very concept of a competition as a tender will lose their meaning.
So, if the owners of the premises in the house have not completed the previously indicated actions, then be prepared for the fact that within the established time frame you will become aware of the holding of the corresponding competition. But even in this case, these individuals have the opportunity to make a decision on their own.
Since the notice of the competition indicates (along with the basis for the competition, the name, location, postal address of the competition organizer) also the characteristics of the competition object (including the address of the apartment building), and the name of the mandatory work and services for the maintenance and repair of the competition object, carried out or provided under a management agreement for an apartment building, and the amount of payment for the maintenance or repair of residential premises, calculated by the organizer competition, and, most importantly, the place, date and time of the competition, then the owners of the premises have the opportunity, even in this case, to exercise their right to choose the method of managing the house.
In this case, if before the day of the competition the owners of premises in an apartment building have chosen a method of managing an apartment building or have implemented a decision to choose a method of managing this building, the competition is not held. If the specified actions are not followed, then when announcing the results of the competition, the opinion of the owners of the premises will no longer be taken into account.
In accordance with the Decree of the Government of the Russian Federation, the winner of the competition must perform the following actions:
- within ten working days from the date of approval of the competition protocol, present to the competition organizer a draft agreement for the management of an apartment building, signed by him, as well as ensuring the fulfillment of obligations;
- within 20 days from the date of approval of the competition protocol, send the draft agreements for the management of an apartment building signed by him to the owners of premises in the apartment building for signing these agreements in the manner established Article 445 of the Civil Code of the Russian Federation.
This provision corresponds to the current Housing Code of the Russian Federation. In accordance with Clause 5 of Article 161 of the Housing Code of the Russian Federation Local government bodies, within ten days from the date of the open competition, notify all owners of premises in an apartment building about the results of the said competition and the terms of the management agreement. Owners of premises in an apartment building are required to enter into a management agreement for this building with a management organization selected based on the results of an open competition, in the manner established Article 445 of the Civil Code of the Russian Federation.
In accordance with this norm of the Civil Code of the Russian Federation, if a party for whom the conclusion of an agreement is obligatory evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of an agreement. A party that unreasonably evades concluding a contract must compensate the other party for the losses caused by this.
But with the conclusion of a management agreement through a competition, the relationship between the local government body and the owner of the premises in this house does not end.
The local government body, no later than one year after the conclusion of the specified management agreement for an apartment building, must convene a meeting of the owners of the premises in this building to decide on the choice of management method. That is, the organization that won the competition to manage the house can easily carry out management and operation.
