Pros and cons of the direct method of managing an apartment building.

Direct method as a way to control MKD. General provisions.

The direct method of management is one of the three ways to manage an apartment building, which are provided for by the Housing Code of the Russian Federation (part 2 of article 161 of the Housing Code of the Russian Federation)

The direct method of management can be chosen and implemented by the owners of MKDs with more than 12 apartments, only subject to the conclusion of a contract for the provision of services and (or) performance of work on the maintenance and repair of common property with the managing organization.

Rationale:

"Art. 161 of the Housing Code of the Russian Federation, clause 9.1 .: Direct management of an apartment building, the number of apartments in which is more than twelve, can be selected and implemented by the owners of premises in an apartment building when such owners conclude an agreement with the management organization for the provision of services and (or) performance of maintenance work and repair of common property in this house.

(Part 9.1 was introduced by Federal Law No. 123-FZ of 04.06.2011)

The procedure for concluding an agreement with a management company with a direct method of management does not differ from the procedure for concluding a management agreement when choosing “MC management” as the management method for an MKD. An agreement for the provision of maintenance and repair services, as well as a management agreement, is concluded on the basis of a decision of the general meeting of owners and is considered concluded if such an agreement was signed by owners with more than fifty percent of the votes.

Rationale:

“Article 164 of the Housing Code of the Russian Federation, clause 1.1.: With the direct management of an apartment building, the number of apartments in which is more than twelve, by the owners of the premises in this house, an agreement for the provision of services and (or) performance of work on the maintenance and repair of common property in this house with owners of premises in this building conclude by the managing organization on the basis of the decision of the general meeting of the said owners.

(Part 1.1 was introduced by Federal Law No. 123-FZ of June 4, 2011)

With the direct method of management, the responsibility of the management company to the owners remains in full. These relations are subject to the requirements of PP No. 491.

Rationale:

"Art. 161 of the Housing Code of the Russian Federation p. domestic gas in cylinders), heating (heat supply, including the supply of solid fuel in the presence of stove heating), are responsible to the owners of the premises in this house for fulfilling their obligations in accordance with the concluded agreements, as well as in accordance with the maintenance rules established by the Government of the Russian Federation common property in an apartment building, the rules for the provision, suspension and restriction of the provision of public services by owners and users of premises in apartment buildings and residential buildings.

(Part 2.1 was introduced by Federal Law No. 123-FZ of June 4, 2011)

The management company, which provides services by the owners under a service agreement with a direct method of management, is obliged by law to properly maintain the common property of an apartment building. The conditions under which the maintenance of common property in an MKD is recognized as proper are defined in regulatory legal acts, respectively, with a direct method of management, the managing organization can be held liable under the law for improper maintenance of common property.

Rationale:

“Article 164 of the Housing Code of the Russian Federation, clause 1.2.: Under a contract for the provision of services and (or) performance of work on the maintenance and repair of common property in an apartment building, one party (managing organization) on the instructions of the other party (owners of premises in an apartment building) within the agreed for a fee undertakes to provide services and (or) perform work on the proper maintenance and repair of common property in this house.

With the direct method of management, each owner of premises in an apartment building, on his own behalf, concludes contracts for the supply of resources: hot water, cold water, heating, and sanitation. The law does not require the conclusion of these contracts in writing.

Rationale:

“Article 164 of the LC RF, clause 2.: Contracts for hot water supply, cold water supply, sewerage, electricity supply, gas supply (including the supply of solid gas in cylinders), heating (heat supply, including the supply of solid fuel in the presence of stove heating) are concluded by each owner of the premises, who directly manages the apartment building, on his own behalf.

(as amended by Federal Law No. 417-FZ of 07.12.2011)

Article 540 of the Civil Code of the Russian Federation: In the event that a citizen using energy for domestic consumption acts as a subscriber under an energy supply agreement, the agreement is considered concluded from the moment the subscriber is first actually connected in the prescribed manner to the connected network.

Unless otherwise provided by agreement of the parties, such an agreement is considered concluded for an indefinite period.

Article 426 of the Civil Code of the Russian Federation: Refusal of a commercial organization to conclude a public contract, if it is possible to provide the consumer with the relevant goods, services, perform the relevant work for him, is not allowed.

Resource supplying organizations are responsible to the owners for the supply of a quality resource to the border of an apartment building. In the absence of a boundary agreed in writing, to which resource-supplying organizations are required to supply a resource of adequate quality, such a boundary is determined by the outer boundary of the MKD or at the junction of the collective metering device.

Rationale:

"P. PP No. 491: The outer boundary of the networks of electricity, heat, water supply and sanitation, information and communication networks (including networks of wired radio broadcasting, cable television, fiber optic network, telephone lines and other similar networks), which are part of the common property, unless otherwise established by the legislation of the Russian Federation, is the outer boundary of the wall of an apartment building, and the boundary of operational responsibility in the presence of a collective (general house) metering device of the corresponding communal resource, unless otherwise established by an agreement between the owners of the premises with the utility service provider or the resource supplying organization, is the junction of the collective ( common house) metering device with an appropriate engineering network included in an apartment building.

2. Positive and negative aspects of the transition to the direct management of an apartment building.

The positive aspects include the procedure for paying for communal resources. Direct relations of the owner with the RSO and with the management company are beneficial for both the owner and the management company.

With direct management, the owner gets the opportunity to make claims directly to those persons who are obliged to provide a quality service and, which is not unimportant, have the opportunity to provide a quality service. For example, when implementing the “MC management” management method, the owner on the ninth floor of an apartment building does not have cold water. It has been established that the standard pressure indicators are not observed at the entrance to the apartment building. The owner cannot apply directly to the RSO, since there are no contractual relations. The management company, for its part, does not have the opportunity to fix this problem on its own, since the problem arose not in its area of ​​​​responsibility. However, the owner will demand recalculation for a low-quality resource from the Criminal Code. But the size of the recalculation will depend on how quickly RCO responds and fixes the problem.

When implementing the management method, the owner has the right to address the same problem both directly to the RSO and to the Criminal Code, which, in turn, will perform the same actions as in the management agreement: redirect the complaint to the RSO, draw up an act.

When implementing the management method "MC management", the management company has one resource supply agreement for all apartment buildings in service. The debt for non-payment of each of the resources for each house is accumulated in the management company, and in the end will be claimed and written off by the RSO. Since income from other activities in the Criminal Code is usually absent or is insignificant, it is precisely those funds that will be received from the population as payment for works and services for the current maintenance and repair of common property that will be levied.

Ultimately, in this situation, the management company turns out to be either bankrupt or on the verge of bankruptcy, the owners are faced with the fact that the work on the current maintenance, not to mention repairs, is simply not being carried out.

It is possible to avoid such a development of events by implementing a direct method of managing an apartment building.

There are, of course, also their disadvantages. Usually they are called such as: the management company disclaims any responsibility and inability to participate in programs for the overhaul of apartment buildings.

As for the responsibility of the management company, it has already been said above that the responsibility for the current maintenance and repair of the common property of the MKD remains in full with the management company, by virtue of the law. To speak of any evasion of responsibility due to the fact that the name of the contract has changed is at least not correct. The only thing that the management company “leaves” from when implementing direct management is the obligation to bear additional costs for billing not for its resources, collection of receivables that are not its own, and from bankruptcy.

As for major repairs and the possibility or impossibility of participating in programs, this will be discussed below.

Conclusion: When choosing a direct method of management, the owners have direct contractual relations with the management company, which is responsible for the maintenance and repair of common property, and with the RSO, which are responsible for supplying the appropriate resource to the border of the MKD. The owner, in turn, is responsible for the timely and full payment for the services of these organizations.

3. Interaction of RSO and MC in the implementation of a direct method of control

As follows from the above norms, when implementing a direct method of management, the owners of MKD enter into a service agreement with the management company. By virtue of this agreement and the provisions of the Housing Code of the Russian Federation, it is the managing organization that becomes the person responsible for the proper maintenance of the common property of such a house, including the maintenance and repair of in-house engineering networks.

By virtue of the provisions of the Civil Code of the Russian Federation, the parties have the right to establish in the contract any conditions that are not prohibited by law, at their discretion. The contract for maintenance and repair, according to the terms, is usually identical to the management contract, with the exception of the condition for the provision of utilities.

4. Conditions for the participation of MKD in federal and regional overhaul programs

The Federal Law "On the Fund for Assistance to the Reform of the Housing and Communal Services" in the conditions of providing financial support does not directly indicate the need to implement one or another method of management (with the exception of HOAs).

The official clarifications of the Fund indicate that an apartment building, the owners of which have chosen direct management, can participate in a major overhaul program financed with the involvement of the Fund's funds, subject to the existence of a contractual relationship with the managing organization chosen by the owners of the premises of this building.

This position is reflected on the official website of the State Corporation - Fund for Assistance to the Reform of Housing and Communal Services.

As for the Regional Capital Repair Program, which is financed without attracting federal budgetary funds, it is the prerogative of the government of the Chelyabinsk region to determine the conditions for the participation of an apartment building in this program.

In our opinion, there are no legal obstacles to include in this program an apartment building, the owners of which have chosen direct management, provided that the owners of such an apartment building:

An agreement was concluded for the maintenance and repair of the common property of the MKD with the managing organization;

A decision was made on the equity financing of the overhaul of an apartment building at the expense of the owners of premises in an apartment building in the prescribed amount.

Art. 164. Direct management of an apartment building by owners of premises in such a building

1. In the case of direct management of an apartment building by the owners of premises in such a house, contracts for the provision of services for the maintenance and (or) performance of work on the repair of common property in such a house with persons carrying out relevant types of activities, the owners of premises in such a house conclude on the basis of decisions of the general meeting of the indicated owners. At the same time, all or most of the owners of premises in such a house act as one party to the contracts.

2. Contracts for hot water supply, cold water supply, sewerage, electricity supply, gas supply (including the supply of domestic gas in cylinders), heating (heat supply, including the supply of solid fuel in the presence of stove heating), municipal solid waste management are concluded by each owner of the premises who directly manages an apartment building on his own behalf.

2.1. Agreements concluded, including in electronic form using the system, by the owners of premises in an apartment building, directly managing such a house, in the cases provided for in this article, must be placed by the specified owners in the system in the manner established by the federal executive body responsible for the development and implementation of state policy and legal regulation in the field of information technology, together with the federal executive body responsible for the development and implementation of state policy and legal regulation in the field of housing - public utilities.

(the system is a GIS resource for housing and communal services)

3. Based on the decision of the general meeting of owners of premises in an apartment building, directly managing such a house, on behalf of the property owners in such a house, in relations with third parties, one of the owners of the premises in such a house or another person having authority certified by a power of attorney issued to him in writing by all or the majority of the owners of the premises in such a house has the right to act.

Commentary on the article

With the direct management of an apartment building, the owners of premises in such a house themselves decide all the general issues of managing an apartment building without creating an association of homeowners and without involving a managing organization (manager). Unlike the provisions of the Federal Law "On Associations of Homeowners", the Housing Code of the Russian Federation does not limit the number of owners of premises that can choose this method of managing a house. The previous law limited the possibility of direct management of a condominium (it used to be in houses with up to 12 apartments).

The implementation of the method of direct management of an apartment building excludes the possibility of attracting a professional manager (managing organization). A person who has paid contracts with the owners of the premises on the provision of services for the maintenance of the house and (or) on the performance of work on its repair, depending on the subject of the contract, must qualify as a contractor or service provider.

The rules on contracts for the provision of services for compensation (Chapter 39 of the Civil Code of the Russian Federation) and on consumer contracts (§ 2 of Chapter 37 of the Civil Code of the Russian Federation) are applied to relations under the contracts in question, taking into account the mandatory requirements for residential premises, their maintenance, the maintenance of common property of owners of premises in apartment buildings, technical regulations, sanitary and technical norms and rules established at the federal level (clause 6 of article 2, clause 12 of part 1 of article 4, clauses 2 and 17 of article 12, clause 8 of article 13 , paragraph 9, part 1, article 14, part 4, article 17, part 1, article 156 of the LCD, etc.), as well as the rules for maintaining common property in an apartment building established by the Government of the Russian Federation (part 3, article 39 LCD).

Part 2 of the commented article regulates relations for the provision of public services. Contracts on cold and hot water supply, sewerage, electricity supply, gas supply (including the supply of gas in cylinders), heating (heat supply, including the supply of solid fuel in the presence of stove heating) must be concluded independently by each owner of the premises on his own behalf.
In accordance with Art. 426 of the Civil Code of the Russian Federation, contracts for electricity, gas, heat, water supply and sanitation, as well as contracts for the sale of gas in cylinders and solid fuels are public contracts. Such agreements should be concluded by commercial organizations with owners of premises with any owner of premises who applied, lives in an apartment building, at a general meeting of owners of premises in which, in accordance with the procedure established by the Housing Code of the Russian Federation, the method of direct management of the house was chosen.
Relations under contracts for electricity, gas, heat, water supply and sanitation, as well as contracts for the sale of gas in cylinders and solid fuels, are subject to the rules for the provision of public services established by the Government of the Russian Federation (part 1 of article 157 of the LC).

6. Owners of premises in an apartment building have the right to choose several ways to implement their decision within the framework of the method of direct management of an apartment building.
Firstly, all current management issues can be resolved at general meetings of the owners of the premises in the house.
Secondly, the owners of the premises can distribute among themselves the responsibilities for managing the house.
Thirdly, they can, in accordance with Part 3 of Art. 164 of the Housing Code of the Russian Federation to choose one authorized person from among themselves or invite another person (not from among the owners) who has the right to act in relations with third parties on behalf of the owners of premises in such a house.

27. Features of the contract for the provision of public services.

In science, there are two types:

Contract for the provision of public services, concluded between the consumer and the CONTRACTOR.

An agreement on the acquisition of communal resources, concluded between the contractor and the resource supplying organization. In fact, the contractor himself buys and resells.

The delimitation of these contractual structures is carried out according to the object. Thus, the legislator tried to distinguish between the category of public services and communal resources.

Another classification option is the division of contracts into three groups.

a) The first group includes contracts mediating entrepreneurial activity in the sector of production and supply of resources (resource supply), removal and treatment of wastewater.

b) The second group includes contracts that mediate entrepreneurial activity in the sector of housing stock management. In this group, first of all, it is necessary to include an agreement on the management of an apartment building (Article 162 of the LC RF), as well as an agreement on the provision of services and (or) performance of work on the maintenance and repair of common property in an apartment building, the number of apartments in which is more than 12, which is concluded by the managing organization with the owners of premises in such an apartment building. Also, the second group includes contracts for the provision of services concluded by the managing organization with other business entities in order to perform the functions of managing an apartment building.

c) The third group includes contracts that mediate entrepreneurial activity in the contracting sector. In this group, it is necessary to single out contract agreements, the subject of which is the overhaul of the housing stock, the current repair of the housing stock, the repair of utilities, the removal of solid domestic waste, the cleaning of territories and entrances, landscaping, landscaping, installation of video surveillance systems, etc. Execution of work - current repairs, overhaul, etc.

More about housing and communal services - gain distribution Concession agreements- a form of private public partnership, regulated by the Federal Law on concession agreements. Advantage of concession agreements: on the one hand, local self-government gets rid of the costs of operating housing and communal services and spending the budget on it, and maybe even get paid for it. On the other hand, private investors and management companies, by implementing their investment project, receive a guaranteed sales market, allowing them to receive income and profit.

In practice, widespread

Life cycle contracts, where the payer is the state, and the private partner makes a profit only if he maintains the infrastructure facility in good condition.

A service contract that combines the signs of a concession and legal relations under work contracts.

PRO SAM CONTRACT

The contract for the provision of public services is a subspecies of the contract for the provision of services for a fee, which is characterized by the fact that the contractor provides, and the customer pays for utilities for the premises specified in the contract. The drafting of the contract is governed by the rules and regulations applicable to contracts for the provision of services for compensation, as well as the Civil Code of the Russian Federation. The purpose of concluding an agreement is to ensure the maintenance of the premises, common areas, and adjacent territory in proper condition.

The essential terms of the contract are:

His subject

Price and settlement procedure between the parties

Their rights, duties, responsibilities and dispute resolution procedures

Such an agreement may be concluded with the contractor in writing. If the consumer has committed actions indicating his intention to consume public services, or has actually begun to consume these services (conclusive actions), the contract is considered concluded on the terms provided for by the Rules for the Provision of Public Services. The consumer cannot be denied the provision of utility services if he does not have a written contract for the provision of utility services.

Payment for the service is usually made according to the invoice in advance for the current month before the date specified in the contract. In case of untimely payment by the customer for the provided service, penalties are charged for each day of delay. The liability of the contractor for non-fulfillment or improper fulfillment of the terms of the contract is, among other things, material in nature, which is expressed in the form of compensation for damage in the manner and amount provided for by applicable law.

In case of disagreements and disputes between the parties, they should try to resolve them amicably. If it is impossible to resolve the dispute out of court, the parties shall resolve it in the manner prescribed by the current legislation of the Russian Federation. The contract is drawn up in duplicate, having equal legal force, and signed by representatives of both parties.

The conditions for the provision of public services, depending on the chosen method of management, are determined in:

– management agreement with the managing organization. At the same time, the managing organization is not entitled to refuse to include in the management agreement concluded with it the conditions for the provision of public services;

- an agreement on the provision of public services, which is concluded by the HOA or LCD with the owners of the premises. At the same time, the HOA or LCD is not entitled to refuse the owner of the premises, both being and not being its member, to conclude such an agreement;

- contracts for cold water supply, hot water supply, sanitation, electricity supply, gas supply, heating (heat supply), which the owners of the premises conclude with resource supply organizations.

All actions regarding the management of an apartment building are carried out at a meeting of owners. Owners can select, change, and cancel them. Based on the results, a resolution is drawn up that applies to all owners of the premises.

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To use an independent form of management, the building must have more than thirty apartments.

The direct management of an apartment building is carried out on the basis of articles of the Housing Code of the Russian Federation. In accordance with regulatory documents, owners can conclude and terminate contracts for the provision of repair work and other types of services for the maintenance of a common area only on the basis of a common decision. Such agreements can only be concluded if the majority of the owners voted at the general meeting for the approval of the idea.

Shape change algorithm

To switch to self-management of the house, you will need to follow the algorithm:

Approval of the main group of tenant activists	At this stage, the owners are determined, who will take the main initiative to conduct the business. It is best if there is at least one representative from each entrance, each of whom could take responsibility for a certain part of the residents. The first thing a group of activists will have to do is make a list of owners. Each tenant will need to explain what self-management of MKD is, and why it should be chosen instead of other forms. After notification, a notification of the first collection must be transmitted. To do this, appropriate letters are sent, where all the necessary information is indicated.
Holding the first meeting	At this meeting, a decision should be made on the form of management of the MKD. Each subsequent decision made applies to each owner. If a simple face-to-face form is used for the meeting, then it is necessary to prepare a place for the event in advance. Most often, this place is the local area. At the meeting, various issues are decided by voting. Only a high percentage of non-attendance of tenants can become a problem. In the event that the majority of owners cannot appear in person, it is better to hold a meeting in absentia. If more than half of the residents responded to the convocation, then the meeting is considered to be held.
Determining the organization responsible for the service	The need to conclude a separate agreement for each tenant with service companies is established by Article 164 of the Housing Code of the Russian Federation. A conclusion on behalf of one citizen is available only if the owners have issued a power of attorney to carry out such actions.

The Housing Code of the Russian Federation states that any apartment building with more than four apartments must have an association of owners, a housing cooperative or a house council. The composition of the formation depends on the chairman, who is elected at the general meeting.

When creating a self-governing MKD, its registration with state bodies is not required. Only one council meeting per house is allowed.

All owners become responsible for organizational activities regarding the operation and maintenance of the house and the local area. All available ideas for improvement should be presented for general consideration.

To coordinate the work, an authorized person is selected, which most often becomes the chairman of the council.

If it is necessary to collect a commission of owners, which will be responsible for various assistance for an authorized person, then the election will also have to take place at a general meeting.

Chairman

Such a status obliges a person not only to lead the council and draw up reports, but also:

• negotiate with companies to provide favorable conditions for the repair and maintenance of property, which will later be submitted for consideration to the general meeting of residents;
• negotiate with utility providers, after which each of the owners will have to conclude an individual contract with the company;
• conclude contracts and carry out the acceptance of services and works on the basis of a power of attorney given by each tenant of the MKD;
• control the process of providing services and the fulfillment of all clauses of contracts by companies;
• represent the interests of owners in court;
• draw up acts on violations.

Important to remember!

By decision of the general meeting of tenants, a remuneration may be determined for the chairman, indicating the amount and procedure for payment.

General meeting of hosts

Regardless of the chosen method of managing an MKD, the legislation defines a general meeting of owners as the main governing body. Residents have the right to decide all organizational issues for the management and operation of the house.

The legislation defines the forms by which the owners at the general meeting make decisions:

The decision of the inhabitants of the house is considered valid only if more than half of the registered voters took part in the voting.

At the first meeting, the following questions are considered:

• adoption of an independent form of house management;
• election of a resident or a third person who will represent the interests of the owners;
• conclusion of contracts with service companies.

Each meeting held must be notified to the owners by 10 days.

Along with this, they announce:

• address of submission of decisions (in absentia or part-time form);
• data of the initiator of the meeting;
• the exact time of the event;
• the reason for the convening;
• ways to get acquainted with the materials of the issue;
• format (subject to change).

The legislation establishes the minimum number of meetings per year - one. But residents have the right to hold extraordinary convocations an unlimited number of times.

Public service activity

Funding rules

If the management of MKD is carried out by the owners themselves, then each of them must conclude an individual contract with contractors and companies providing resources.

Individual contracts must be concluded in order to avoid a situation where the entire team, and not individual tenants, is held liable. And overall utility consumption remains unanswered.

All funds allocated for common use by the owners of housing are distributed by the residents themselves at the councils. Here the choice of contractors, monitoring the quality of the services and works provided is carried out.

Conclusion of an agreement

Two types of agreements are defined:

Resource supplying	This is the provision of gas, water, electricity and other resources. It is issued individually by each resident. Responsibility of the company providing resources will bear to each client separately on the basis of the concluded contract.
Repair and maintenance	This includes cleaning, garbage disposal, maintenance of elevators and engineering networks. Those responsible for them are indicated in the relevant contract, they take on the responsibility of monitoring their good condition. External networks must be serviced by resource companies, but when they go into internal networks, the inhabitants of the house become responsible.

Advantages and disadvantages

Advantages

This may include: management is fully carried out only by apartment owners who are directly interested in the quality of the result, and all decisions can be made only with the consent of more than half of the residents; the funds of the house are used only for the needs of this building; a separate contract is drawn up with each resident for the provision of services from the respective companies, which allows using the funds of each of the payers only in his interests; if the service is provided of poor quality or not in full, then each resident can demand recalculation without outside intermediaries; there is no need to pay money for using the services of the management company.

disadvantages

This may include: not every house can implement this method of management (it will be inconvenient for houses with a large number of apartments to hold councils and votes); no funds will be allocated from the city and regional budgets for house repairs.