Owners of non-residential premises and management company: the foundations of harmonious relations. The relationship between the owner of non-residential premises and the homeowners' association. The relationship between the owners of non-residential premises and the homeowners' association.


Since the new year, the nature of the relationship between the organization managing the house (management company, homeowners' association, housing or housing construction cooperative) and the owner of non-residential premises has changed.

Previously, such an owner had two options receive housing and utility services: in the general manner through a management company, homeowners' association, housing complex/housing cooperative or by agreement with a resource supply organization (RSO). Now the owner of the premises must enter into resource supply agreements under direct contracts with the RSO. The organization managing the apartment building acts as a third party in these relations. It no longer provides housing and communal services to premises that are non-residential. However, with all this, the MA has new responsibilities.

At the moment, the management organization, homeowners association, housing or housing construction cooperative must:

  • notify the owner of non-residential premises of the need to enter into agreements with the resource supply organization and the regional MSW operator;
  • receive a number of documents and mandatory information from the owner of the premises;
  • information about the owners of non-residential premises in an apartment building.

Such changes are associated with the advent of the Russian Federation Regulation No. 1498 dated December 26, 2016 “On issues of providing utilities and maintaining common property in an apartment building.” This resolution included the above responsibilities in the so-called Rules(Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of Russia dated 05/06/11 No. 354).

This requirement does not apply to owners of parking spaces (car spaces). The management organization, homeowners' association, housing or housing-construction cooperative interacts with these owners in exactly the same manner as with the owners of residential premises in an apartment building.

Question: who should commission and seal water, gas and electricity meters in non-residential premises?

After switching to a direct contract with RSO, work on commissioning individual metering devices must be carried out by the corresponding resource supply organization.

The supply of cold and hot water supply, thermal energy, electricity and gas to the non-residential premises of an apartment building, as well as water disposal (sewerage), must take place on the basis of direct agreements with the RSO. Such agreements are concluded in accordance with the current rules on water supply, sewerage, electricity supply, gas supply, heat supply (paragraph 3, paragraph 7 of Rules No. 354.

For example, the RF PP dated July 29, 2013 No. 643 approved a standard domestic hot water supply (hot water supply) contract. Clause 13 of this agreement provides for the obligation of the resource supplying organization to provide access to hot water meters (metering units). And clause 19 introduces the obligation to seal meters.

Agreement between the management organization and the owner of non-residential premises

What agreement is to be concluded between the management company and the owners of non-residential premises in the apartment building depends on the method of managing the house. If the management company manages the MKD, then the same rules apply; if it’s an HOA, a residential complex/housing cooperative, then others.

The management company manages the apartment building

The management company signs an apartment management agreement with each property owner. These conditions are approved by the OSSP (general meeting of premises owners) in the apartment building. In this case, the provisions of Part 1 of Article 162 of the Housing Code of the Russian Federation must be observed (equal conditions for all owners). There is no special agreement (form of contract) specifically for owners of non-residential premises in the law.

At the same time, the management agreement must contain provisions directly related to the owners of non-residential premises in the apartment building. There are two such special conditions:

  • the owner’s obligation to enter into a written resource supply agreement with the RSO and an agreement for the provision of services for the management of MSW with the local regenerator;
  • consequences of the event if the owner does not sign such agreements.

Such requirements are specified in paragraph 14, paragraph “p”, paragraph 31 and in paragraph 9, paragraph “k”, paragraph 148(22) of Rules No. 354. If your current apartment management agreement does not contain these provisions, you should definitely include them . This will free you from unnecessary disputes and misunderstandings with the owners.

Homeowners association, residential complex or housing cooperative manages apartment buildings

There can be two situations here, depending on whether the owner of the non-residential premises is a member of a housing association or not.

If the owner of non-residential premises is not a member of a partnership or housing cooperative (housing-construction cooperative), then an agreement (agreement) is concluded for the provision of services for M&D OI (maintenance and routine repairs of common property) (Part 6 of Article 155 of the Housing Code).

If the owner is a member of a housing association, then the agreement must be concluded No need. Members of a homeowners' association, housing complex, housing cooperative are required to pay for the M&I of the industrial building in an apartment building in the manner established by the governing bodies of the homeowners' association, residential complex or housing cooperative (part 5 of article 155 of the Housing Code).

Notifying the owner of non-residential premises about the need to enter into agreements with RSO

Current legislation provides for the obligation to notify owners of non-residential premises in an apartment building about the need to switch to. The notice period is not specified in the law, but it is best not to delay. The sooner non-residential premises in apartment buildings are notified, the less likely there are problems in the future.

The notice must contain three groups of information(paragraph 14 of subparagraph “p” of paragraph 31 and paragraph 9 of subparagraph “j” of paragraph 148(22) of Rules No. 354):

1. It is the responsibility of the owner of non-residential premises to enter into written agreements with the RSO and an agreement for the provision of services for handling MSW with the reoperator.

2. Consequences in case of non-conclusion of contracts. There will be consumption of commercial resources, but without a written contract. This means that the resource supplying organization will determine the volume of resource consumption in a calculated manner, which is provided for by current regulations. This method of calculating for resources is very unprofitable for owners of premises in apartment buildings. Non-contractual consumption of resources gives the resource supplying organization the right to stop supplying utility resources to a given non-residential premises, if such a technical possibility exists.

The notice must be delivered to the owners of non-residential premises in two ways at the same time .

First notification method

In compliance with the norms specified in paragraph 4 of paragraph 6 and paragraph 5 of paragraph 148(1) of Rules No. 354, give a notice to each owner of non-residential premises in the house. Each copy must be signed by an authorized person (manager or representative by proxy) and sent by mail, delivered in person. The method of transmission of the notice must be recorded so that it is clearly established that the owner received such notice (for example, a receipt upon delivery).

Second notification method

Place a general notice for all owners of non-residential premises in apartment buildings on notice boards located:

  • in all entrances of a residential building;
  • in the premises of the management organization - in the place where the population is received.

This is provided for by the norms of paragraph 14 sub-clause. "p" clause 31 and paragraph 9 sub. “k” clause 148(22) of Rules No. 354.

Note! Failure to notify the owner of non-residential premises can lead to misunderstandings and disputes.

If the owner does not sign direct contracts with RSO, then resource specialists will determine the volume of commercial resources by calculation. This means that the property owner will pay more than expected. He can blame the management organization for such an overpayment and demand compensation for losses in the amount of the overpayment.

Judicial practice has not yet been formed, so it is difficult to say what the court will decide in such a situation. The very fact of the dispute already has a negative consequence.

Question: Does the tenant have the right to independently enter into direct contracts with RSO?

No, he does not have such a right. The responsibility lies only with the owners of non-residential premises (paragraph 3 of paragraph 6 of Rules No. 354).

Question: Does the owner of non-residential premises need to renew agreements with RSO that were previously concluded?

No, it is not necessary if they do not contradict current legislation. These agreements were concluded by real estate owners in accordance with the rules of civil law in force at that time. Only they were concluded as a right, and not an obligation, for these owners of non-residential premises.

What documents and information do you need to obtain from the owner of non-residential premises?

The owner of the property is obliged to transfer documents and information to the management company (HOA, residential complex, housing cooperative). They are necessary for the management organization to manage apartment buildings, these are: copies of resource supply agreements with RSO. The MA has the right to demand a copy of the agreement with the RSO from the moment of conclusion (clause 18 of Rules No. 354). But in fact, the moment of conclusion of the MA may not be known. Therefore, it is necessary to send a request to the owner of non-residential premises in the apartment building with the wording: “Based on clause 18 of Rules No. 354, we ask you to provide us with copies of all your agreements with resource supply organizations. If you have not yet concluded direct agreements, please provide copies of them within 3 (three) days from the date of signing.”.

In addition, non-residential premises in apartment buildings must provide the management with the following information:

  1. Volumes of utility resources consumed during the billing period under resource supply contracts. Property owners are required to provide this data in the same manner and within the same time frames as ordinary owners of premises (clause 18 of Regulation No. 354).
  2. Volumes of MSW management services provided during the billing period under an agreement with the regional MSW operator. The owner of non-residential premises is obliged to provide this information within three working days from the date of receipt of the request from the MA (paragraph 4 of paragraph 148(1) of Regulation No. 354).

Question: what to do if non-residential premises in apartment buildings do not transmit data on the volume of consumed utility resources to the management company, homeowners' association, residential complex, housing cooperative

A written request for information can be sent not only to the owner, but also to the relevant resource supply organization (subparagraph “e(1)” of paragraph 18 of Regulation No. 124). RSO must take into account separately the volume of supply of communal resources to owners of residential and non-residential premises in apartment buildings.

Transfer of information about the owners of non-residential premises to the RNO and the regional MSW operator

There is one more responsibility of the management organization. She is obliged to transfer information about the owners of non-residential premises to the RSO and to the registrar for the management of solid waste (paragraph 4, paragraph 6 and paragraph 5, paragraph 148(1) of Rules No. 354).

To fulfill this obligation, the notice must indicate the following:

  • house address, where the non-residential premises in the apartment building are located;
  • list of non-residential premises;
  • Full name or name of organization, owning non-residential premises.

Additionally you can specify: phone numbers property owner. This will help resolve unforeseen issues that may arise for the RSO and the regional MSW operator.

Send the message in any convenient way that records receipt of the correspondence.

Non-residential premises in MKD

5 (100%) 2 vote[s]

Common property is considered to be that which is used to service two or more premises.

The common property of apartment building residents includes:

  • elevators, corridors, staircases, basements and attics;
  • premises allocated to meet social and domestic needs;
  • engineering and technical equipment located both inside and outside the premises;
  • roofs and technical fences;
  • local area.

Reference! Over time, through the use of targeted contributions from citizens and non-members of the partnership, new objects of shared public property can be created in the apartment building, for example, a sports or children's playground. The decision to create a new property is made at a meeting of HOA members.

Responsibilities for maintaining common property

In order to fulfill the responsibilities for maintaining common property, property owners can become members of the HOA or must enter into an agreement with the homeowners’ association, on the basis of which the organization is delegated all rights to carry out such actions.

The agreement states that the financial burden for maintaining the common property lies with the owners, regardless of their membership in the HOA, in proportion to the share of ownership.

Citizens who are not members of the partnership are charged only for the maintenance of the property. Non-members of the HOA are not required to pay bills for the purchase of new property or additional services, for example, security of a yard or parking lot.

The amount of payment is determined by the income/expense estimate, which is approved at the general meeting. According to the Rules adopted by the Government of the Russian Federation No. 491, the amount of regular payments is determined by the general meeting and is mandatory for everyone.

In the field of maintenance of common property, the HOA carries out the following work:

  • represents the interests of owners;
  • carries out work within the framework of the charter;
  • concludes contracts with maintenance and repair organizations;
  • controls the implementation of the clauses specified in the concluded contracts;
  • selects service and resource companies;
  • accepts contributions and payments for utilities;
  • transfers funds under contracts;
  • makes mandatory payments;
  • determines the estimate and regularity of payments by owners;
  • requires timely payment;
  • carries out general property insurance.

Maintenance of common property: what does it include?

According to Article 151 of the Housing Code of the Russian Federation, The property of the partnership itself is movable and immovable property located inside and outside the house:

The HOA has the right to acquire property at the expense of membership fees if such acquisition is carried out to achieve the statutory goals of the organization.

Note! The partnership does not have the ability to alienate, and, therefore, acquire shared property. However, by decision of the general meeting, such property may be transferred to the partnership for use.

Any acquisition of new movable property by the HOA is recorded in accounting entries and has documentary support and confirmation (check, agreement, etc.). Ownership of real estate is registered in the relevant title documents, where the owner is designated as a partnership.

The HOA may acquire at its disposal the property that belonged to the owners, but for use for purposes other than residence. For example, these could be various non-residential premises on the ground floor, which were used for arranging shops, pharmacies, studios, etc.

Board room

The premises in which the board and maintenance personnel carry out their work may be allocated from part of the shared ownership. This decision is made by all owners. An area in the corridor, basement, on the technical floor can be allocated, or a separate room in the house can be purchased at the expense of members of the HOA.

The premises must have access to electrical and heating networks, and facilities for storing documentation(contracts, accounting reports), and, provided there is a cash register for accepting contributions and payments, a security system.

Relations between the owners of non-residential premises and the partnership

The complexity of the relationship between HOAs and owners of non-residential premises lies in some contradictions contained in regulations.

On the one hand, the Housing Code defines the right of shared ownership of non-residential premises. On the other hand, in the Resolution of the Armed Forces of the Russian Federation N3020-1 “On the delimitation of state property” of 1991. , Decree of the President of the Russian Federation No. 2284 of December 24, 1993, and in Decree of the President of the Russian Federation No. 1535 of July 22, 1994. , it is said that such premises are transferred to the ownership of the administration of the locality and can be privatized.

Often, such premises cannot be separated from common property, since they often contain communications and engineering equipment, the work of which is aimed at servicing the house. Closing free access to them for routine or emergency work may become the subject of a dispute between the HOA and the owner.

Many questions also arise about the participation of owners of non-residential premises in the general costs of its maintenance. In this case, the owner of the non-residential premises must sign an agreement with the HOA for the right to share participation in use and expenses or for the management of common property.

The Housing Code in this sense obliges all owners of both residential and non-residential premises, regardless of whether they use common property or not, to bear an equal burden for the maintenance of real estate.

Reference! The amount of payment for the maintenance of common property may be established at a general meeting. It can be either proportional to the share of each owner, or have an increasing coefficient in relation to owners of non-residential premises.

Conclusion of an agreement

The agreement between the HOA and the owner of the non-residential premises has a form slightly different from that concluded between the partnership and the owner of the residential premises who is not a member of the HOA.

The contract must contain the following mandatory clauses:

  • transfer of property in common shared ownership;
  • list of services provided aimed at maintaining common property;
  • determining the cost of maintaining a house.

The contract should clearly indicate the following points:

How to register non-residential premises as the property of the HOA?

As already mentioned, a partnership can act as the owner of real estate, including non-residential premises, but only if it acquired them as a result of an act of donation, purchase, and similar actions described by the Civil Code of the Russian Federation.

How can an HOA become the owner of common property, even if it is non-residential? In this case, only a meeting of all owners of shared property can make a decision on the sale of this property to the HOA. All relations between owners, regardless of their participation in the HOA, are regulated by federal laws, the Housing Code and Government Decrees.

To avoid friction and lawsuits, any transactions by the HOA must be carried out with the approval of the owners. Relations with the owners of non-residential premises are established on the basis of concluded agreements for the provision of utility services and participation in the maintenance of common property.

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06.08.2012

Obviously, the one who says that one of the most acute and painfully resolved conflicts today is the conflict between the Home Owners Association (hereinafter referred to as the HOA) and the owners of non-residential premises in apartment buildings (hereinafter referred to as the owner) will be right. . The essence of the dispute, in our opinion, comes down to the fact that the owners of non-residential premises do not want to pay for “benefits” that they do not use and do not need. Of course, many HOAs meet the owners halfway, issuing invoices only for a certain volume of services (in addition to the generally obligatory ones), however, as practice shows today, there are cases when the board, the chairman of the HOA use the mechanism of the Partnership not for the purpose of managing the property of the owners, but for the purpose of personal enrichment. This is precisely the reason for the reluctance of the HOA to meet the needs of the owners of non-residential premises. Today, there are no longer isolated cases of bringing HOA Chairmen to criminal liability under Art. 160 of the Criminal Code of the Russian Federation.

This article is more focused on owners of non-residential premises and its purpose is to help owners understand the complex scheme of working with HOAs, a way to protect their interests and rights.

So, the relations of the parties in the situation under consideration are regulated by the following regulations: Civil Code of the Russian Federation, Housing Code of the Russian Federation, Decree of the Government of the Russian Federation of May 6, 2011 N 354 “On the provision of utility services to owners and users of premises in apartment buildings and residential buildings. (comes into force on 01/01/2012); Decree of the Government of the Russian Federation of August 13, 2006 N 491 “On approval of the rules for the maintenance of common property in an apartment building and the rules for changing the amount of fees for the maintenance and repair of residential premises in the case of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building of inadequate quality and (or) with interruptions exceeding the prescribed duration” (sometimes applied by courts by analogy to owners of non-residential premises, although courts often recognize the parties’ references to this act as unfounded); Resolution of the State Committee of the Russian Federation for Construction and Housing and Communal Sector dated September 27, 2003 N 170 “On approval of the rules and standards for the technical operation of the housing stock.”

1. Obligation to pay for utilities.

Regardless of membership in the HOA, the owner of non-residential premises is obliged to pay utility costs and expenses for the maintenance of common property. At the same time, a very important question is what exactly the costs of maintaining common property include and whether the entire volume of services indicated in the HOA invoice are costs of maintaining common property (for more details, see paragraph 3 of this article).

The obligation is due to the following. In accordance with Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property he owns, unless otherwise provided by law or contract.

According to Art. 158 of the Housing Code of the Russian Federation, the owner of premises in an apartment building is obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining common property in an apartment building in proportion to his share in the right of common ownership of this property by paying a fee for the maintenance and repair of residential premises.

In addition, by virtue of Art. 39 of the Housing Code of the Russian Federation, owners of premises in an apartment building bear the burden of expenses for maintaining common property in an apartment building. The share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of the premises in such a house, is determined by the share in the right of common ownership of the common property in such a house of the specified owner.

Thus, the owner of non-residential premises in an apartment building is obliged to bear the burden of maintaining the premises, as well as pay the costs of maintaining common property in the apartment building.

2. Registration of relations with HOAs, RSOs (resource supply organizations).

The owner can enter into an agreement with the HOA, stipulating the scope of services provided by the HOA. For example, 2 versions of an agreement with the HOA can be drawn up.

Option 1. It only includes the scope of services provided to the HOA for the maintenance of the common property of the HOA owners. The owner enters into contracts with RSO for the provision of utility services independently.

Option 2. Includes the entire scope of services, including utilities, that is, in this case, the HOA acts as an intermediary between the owners and the RSO (in the general mode).

Concluding an agreement is desirable for the owner of non-residential premises who is not a member of the HOA, since in this case, the owner will not have to pay for all services at the rates determined by the minutes of the general meeting of the HOA. In case of disagreement with the protocol, the owner has the right to appeal the protocol of the general meeting of the HOA. The owner, when concluding an agreement, pays only for the services specified in the agreement.

The mechanism for concluding an agreement with the HOA is as follows.

Option 1. You prepare an agreement and submit it to the HOA with a letter, indicating the deadline for the HOA to sign and return the agreement to you.

Option 2. You take the HOA agreement and, in case of disagreement with certain provisions, prepare a protocol of disagreements and sign the agreement stating the disagreements.

However, the HOA may not agree with the terms you propose, then you can go to court with a demand to force the HOA to conclude an agreement in the version you proposed. During the process, it will be necessary to justify the illegality of certain provisions of the contract or that these provisions infringe on your rights and legitimate interests.

In turn, the HOA is obliged to conclude agreements with the owner, while the conclusion of an agreement between the owner and the HOA is the will of the owner. This is due to the following.

According to Art. 138 of the Housing Code of the Russian Federation, the Homeowners Association is obliged to:

“1) ensure compliance with the requirements of this chapter, the provisions of other federal laws, other regulatory legal acts, as well as the charter of the partnership;

2) manage an apartment building in the manner established by Section VIII of this Code;

16. Proper maintenance of common property, depending on the method of managing an apartment building, is ensured by:

a) owners of premises;

b) a homeowners’ association, housing, housing-construction cooperative or other specialized consumer cooperative (when managing an apartment building);

through membership of premises owners in these organizations - in accordance with sections V and VI of the Housing Code of the Russian Federation;

by concluding agreements on the maintenance and repair of common property with these organizations by the owners of premises who are not members of these organizations - in accordance with paragraph 2 of Article 138 of the Housing Code of the Russian Federation.”

However, there is a small remark here too.

The main document regulating the procedure for providing utility services in the Russian Federation is Decree of the Government of the Russian Federation of May 23, 2006 N 307 “On the procedure for providing utility services to citizens.”

However, the Rules for the provision of utility services do not apply to owners of non-residential premises (after all, in such premises there are no consumers - citizens who use utilities for personal, family, household and other needs not related to business activities). Consequently, the HOA is not obliged to conclude an agreement with the owners of non-residential premises on the provision of utility services (Resolution of the Federal Antimonopoly Service of the North-West District dated 04/02/2009 in case No. A56-107/2008, the revision of which was refused by the Ruling of the Supreme Arbitration Court of the Russian Federation dated 09/03/2009 No. VAS-9072/09) . Accordingly, the partnership does not have an obligation to provide utility services to the owners of non-residential premises, who have the right, with the consent of the RSO, to enter into a sub-subscription agreement with the HOA or demand amendments to the agreement between the HOA and the RSO in terms of including the owner of the non-residential premises as a sub-subscriber. Also, as mentioned above, the owner can enter into agreements with RSO independently. The obligation of the HOA to enter into an agreement for the provision of utility services arises if the owner does not have the technical ability to independently connect to the RSO.

Important. A HOA member is obliged to pay all expenses for the maintenance of common property established by the general meeting of HOA participants. An owner who is not a member of the HOA can enter into an agreement without joining the HOA, then the minutes of the general meeting of HOA members do not fully apply to this owner, since the agreement may establish a certain list, volumes and cost of services to be paid by a person who is not member of the HOA.

I would like to draw your attention to the following. There are known cases when, at a general meeting of HOA members, different amounts of mandatory payments are established: for citizens - the same, and for organizations and individual entrepreneurs (owners of non-residential premises) - in an increased amount, and the owners of non-residential premises are required to pay the bills of the HOA, issued on the basis of differentiated payment rates, until the corresponding decision of the general meeting of HOA members is declared invalid (see, for example, Resolution of the Federal Antimonopoly Service of the Eastern Military District dated April 1, 2008 N A43-4327/2007-28-57). The court will side with the owners and confirm that such a decision is illegal, regardless of whether the owners are members of the HOA (Resolution of the Federal Antimonopoly Service of the Central District of April 29, 2008 N A35-2290/07-C16). In the future, the owners of non-residential premises have the right to go to court with a demand to recover from the HOA unjust enrichment in terms of the amount of payments that are disproportionate to the share in the right of common ownership of common property in an apartment building. The arbitrators will also support the owner (Resolution of the Federal Antimonopoly Service ZSO dated December 13, 2007 N F04-8339/2007 (40703-A70-30)).

Conclusion.

  1. Lack of membership in an HOA does not relieve one from the obligation to pay for utilities (in the absence of independent agreements with the RSO) and the costs of maintaining common property.
  2. Concluding an agreement with the HOA is not necessary, but it is desirable, since in the agreement the owner can determine the number of services provided to him by the HOA; otherwise, the owner may be obligated to pay for the HOA’s services in full (with the exception of certain provisions).

Islamgaleeva Dina Rafaelevna


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Owners of non-residential premises often refuse to pay for the maintenance and repair of the common property of an apartment building. This is a wrong position; they should pay for maintenance and repairs on the same basis as residential property owners. Find out why.

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.

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 house:

  • 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 the 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 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.

conclusions

Both owners of residential premises in apartment buildings and owners of non-residential premises must pay fees for maintenance and repairs. The amount of such payment is established in proportion to the share of the participant in the common shared ownership of the common property of the apartment building.

Failure to conclude an agreement between the management organization and the owner of the residential premises does not relieve the owner from the obligation to pay fees for the maintenance and repair of common property in the apartment building.

Hello, Galina!

After reading the correspondence, I decided to correct and add something.

You write that:

I pay the HOA a monthly fee for the maintenance of the common property of an apartment building, but the HOA considers this fee insufficient. We have the same address, the house with the store is considered a single complex according to BTI documents
Galina

This means that you are the same owner of premises in an apartment building as any other owner, and have exactly the same rights and obligations as any other owner (for example, an apartment).

By the way, you also have the right to be a member of the HOA and be elected to the HOA Board. If the area of ​​the store is large enough compared to the total area of ​​the apartments, then you will have a good number of votes at the general meeting of owners. Well, by the way...

From 01/01/2017, in accordance with changes to paragraph 6 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated 05/06/2011 No. 354, owners of non-residential premises must enter into resource supply agreements directly with resource supply organizations. As far as I understand from the correspondence, you already have such a direct agreement with the resource provider (if not yet, then I recommend concluding it as soon as possible, extending its validity to legal relations from 01/01/2017). Having an agreement with the resource manager, you should absolutely not worry about how the communications are going, who owns the communications, whether their transfer was agreed upon or not. Let the resource officer with the HOA solve these problems. There are basically only two options here and both options do not affect you:

  1. Or communications are the common property of the home owners.
  2. Or communications are someone else’s (but not your) property, possibly ownerless.

The only option you would be affected by is if the communications were your personal property, which they are not. Therefore, it is not clear how you can be required to remove communications if they are not your personal property?! Let it be a headache for the HOA and the resource officer, but not yours. No one has the right to turn you off.

The amount of the fee must be reasonable. If you believe that the fee is not justified, then you can contact the tariff regulation authority with a complaint about the unreasonable increase in the tariff.
Karavaitseva Elena

Here Elena Karavaitseva was mistaken, since the powers of the price (tariff) regulatory authorities do not include inspection and any control of the level of payment for the maintenance of common property. This means there is no point in going there. The fee for the maintenance and repair of common property in an apartment building is determined by the management bodies of the HOA, but this fee should be the same (in rubles/sq.m.) for both apartment owners and owners of non-residential premises. There should be no discrimination. Therefore, regardless of whether you are a member of the HOA or not, you by virtue of Article 143.1 of the Housing Code of the Russian Federation has the right to get acquainted with the minutes of general meetings of HOA members and meetings of the HOA board. Let them show the protocol by which the fee is established, and even let them show the documents confirming the voting results (you also have the right to get acquainted with them). Also, on the basis of the same article 143.1 of the Housing Code of the Russian Federation, you have the right to demand from the HOA to familiarize yourself with the technical documentation for the apartment building.

Sincerely, Oleg Ryabinin.