In the publication legal questions of the conclusion and performance of Contracts on rendering of housing-and-municipal services, payment of housing-and-municipal services in detail reveal.
Legal questions of the conclusion of contracts and fee in the sphere
service of premises
Problems of housing and communal services are actual and treyobuyushchy the urgent decision, after all it is the questions of an everyday life concerning all without an exception of citizens.
The main directions of the organizayotsionny economic otnosheyoniya arising in the sphere of a predoyostavleniye and consumption of zhilishchyono-utilities between ikhproizvoditel, performers and consumers, and also them prava and duties the Law of Ukraine About housing kommunalnyx services defines (Law). In article 19 of the Law it is defined that the relations interfood participants of the contractual relations in the sphere of housing-and-municipal services osushhestvlyayutsya only on a contract basis.
Participants of the relations in the sphere of zhiyolishchno-utilities are: owner (premises), consumer, performer, proyoizvoditel. The producer of services can be their performer. The producer – is the subject of managing, vyrabatyvayoyushchy or creating housing kommunalnye services.
According to a part 3 of article 20 of the Law, the consumer is obliged to sign the contract on providing the housing-and-municipal services, prepared by the performer on the basis of the model treaty.
The performer, according to the Law, yavlyaetsya the subject of the managing, which object of activity – providing housing-and-municipal service to a potrebiyotel according to conditions dogovora. The performer is obliged to prepare and zaklyuchit with the consumer the contract on a predoyostavleniye of housing-and-municipal services with definition of responsibility for a neyosoblyudeniye of conditions of its performance soyoglasno to the model treaty.
The law provides essential (obligatory) contract provisions about a predoyostavleniye of housing-and-municipal services between the performer/producer and the consumer.
Essential conditions dogovora are those conditions without which coordination the contract at all isn’t considered zayoklyuchenny. In particular, them are:
1) name of the parties;
2) subject of the agreement;
3) the exhaustive list of zhilishchyono-utilities, tariffs and their components on each of these services, promising cost of services;
4) an order of payment for the consumed housing-and-municipal services;
5) an order of recalculation of the size of a payment for housing-and-municipal services in sluchae their unaccordance or a predostavyoleniye not in full, decrease in their quality;
6) rights and obligations of the parties;
7) order of control and report of the parties;
8) an order of measurement of volumes and opreyodeleny qualities of the provided services;
9) definition of points of distribution in which there is a transfer of services from the performer/producer to the consumer;
10) an order of service of networks and a rasyopredeleniye of powers concerning their operation and restoration (repair);
11) conditions of access to the apartment, the house, a room, on the land lot of a dlyaustraneniye of failures, malfunctions, survey of networks, removals of control indicators of means of the account;
12) repair procedure;
13) responsibility of the parties and shtrafyony sanctions for default of contract provisions;
14) order of the solution of disputes;
15) list of force-majeur obstoyayotelstvo;
16) period of validity of the contract;
17) conditions of change, prolongation, contract cancellation;
18) date and contract detention center. Except essential, the contract mozhetsoderzhat other conditions on a soglasovayoniya of the parties.
The contract on providing housing-and-municipal services comes into force from a moyoment of its conclusion.
Along with it it is necessary to note that the model treaty about service on tsentyoralizovanny heating, supply by cold and hot water and vodootvodu Kabineyota Ministrov Ukrainy (KMU) No. 630 from July 21, 2005 is confirmed by the resolution. The model treaty about a preyodostavleniye of services in the maintenance of houses, constructions and the pridomovy territory is approved by the resolution KMU No. 560 from July 12, 2005.
At the conclusion of contracts on a predoyostavleniye of housing-and-municipal services of the party can’t recede from the soderzhaniyatipovy contract approved as KMU, but have the right to concretize its conditions. The contents of the contract on a predoyostavleniye of housing-and-municipal services can’t essentially differ from a soyoderzhaniye of the model treaty.
At the conclusion of contracts that the contract, kotoyory should be signed with the consumer is necessary obratit attention, can’t provide smaller objyoy the rights, obligations of the parties and quality of housing-and-municipal services, than preduyosmotrenny the model treaty, In a dogoyovor it is necessary to define the rights, duties and responsibility of the parties.
Therefore, at the conclusion of doyogovor about granting housing kommunalnyx services standards of the current legislation are applied. Besides, it is necessary to note that the Law vozlagaet on performers a duty to sign with consumers contracts on granting housing kommunalnyx services. But today practice pokazyvaet that in most cases contracts between consumers and performers / producers housing kommunalnyx services don’t consist.
At the solution of the specified question it is necessary to consider that the consumer poluchaet from the performer housing kommunalnye services and, respectively, oplachivaet their use, that is the consumer is in the actual contractual otyonosheniye with the performer. Sledovatelyyono, both parties in these relations imeyut certain rights and duties, namely: the performer is obliged predostavlyat to the consumer high-quality zhilishchyono-utilities, and the consumer is obliged to pay the received services.
Let’s separately stop on such probleme, as relationship between a sobyostvennik and balansoderzhatel. So, by article 23 of the Law it is defined that the sobyostvennik has the right to have on balance and to operate an imushcheyostvo belonging to it. The owner has the right to charge to dispose and operate in whole or in part an imushcheyostvo belonging to it according to the Law and the contract to a balanyosoderzhatel or the managing director.
By part 4 of article 19 of the Law it is defined that special participants of the relations in the sphere of housing-and-municipal services yavlyayutsya balansoderzhatel and the managing director who depending on civil pravovyx agreements can be potrebitelyami, performers or producers.
The contract on providing housing-and-municipal services consists in an apartment house between the owner of the apartment, the tenant or the tenant, and a balansoderzhatel or upolnoyomochenny it the person. In case the balanyosoderzhatel isn’t a performer, he signs contracts on providing zhiyolishchno-utilities with other isyopolnitel (a part 1 and 2 of article 29 of the Law). Balansoderzhatel of the house, constructions, a housing estate or a complex of houses and constructions – is the owner or the yuriyodichesky person which under the contract with a sobyostvennik contains sootvetyostvuyushchy property on balance, keeps accounting, statistical and other reporting provided by the legislation, osushhestvlyaet calculations of the means necessary for timely carrying out capital and flowing repairs and the contents, and takzhe provides management of this imushcheyostvo and bears responsibility for its eksyopluatatsiya according to the Law.
Balansoderzhatel is obliged to sign contracts with the owner (sosobstvennik) about the contents on balanse the corresponding imushcheyostvo, to contain on balance an imuyoshchestvo defined by the contract with the owner (sosobstvennik); messages the accounting, statistiyochesky and other reporting provided by the legislation in a soyootvetstviye with the legislation; to provide property administration by own forces or zaklyuchit the contract with the legal entity on property administration; obespechit conditions for timely carrying out capital and tekushhego repairs according to ustanovlenyony standards, standards, normam and to rules; to provide appropriate operation and the maintenance of the property being at it on balance.
According to Law article 24, the bayolansoderzhatel has the right zaklyuchat contracts on providing housing-and-municipal services and to appeal to court with the requirement to turn claim to property of the persons refusing oplachivat of the account for consumption of housing kommunalnyx of services or to pay prichiyonenny damages to the property being at it on balance.
By the law it is provided that the potrebiyotel has the right to receive in the order established by the legislation necessary information on the list housing kommunalnyx services, their cost, the general stoiyomost of monthly payment, price / tariff structure, norms of consumption, an order of a preyodostavleniye of services, their consumer svoyyostvo. The consumer monthly receives accounts about payment of housing-and-municipal services and pays for the maintenance of houses and the pridoyomovy territory. Thus arises vopros, for what we pay? What is soderzhayony houses and pridomovy territories?
The maintenance of houses and pridomovy teryoritoriya – is the economic deyatelyyonost directed on satisfaction of need of the physical or yuridiyochesky person concerning ensuring of operation and/or repair of inhabited and neyozhily rooms, houses and constructions, complexes of houses and constructions, and also the contents nearby to them (pridoyomovy) territory according to treyobovaniye of standards, norms, standartov, orders and the rules established by the legislation. It is necessary to understand the territory as a pridomovy teryoritoriya round an apartment house which is defined by the act of an ownership right or usings the land lot and it is intended for service of the mnogoyokvartirny house.
The order of formation of tariffs for services in the maintenance of houses, sooruzheyoniya and the pridomovy territory and the model treaty about service on a soderyozhaniye of houses and constructions and the pridomovy territory is approved by the resolution KMU No. 560 from July 12, 2005.
By the specified Order it is provided that the size of tariffs (standard rasxodov, the houses connected with the contents, constructions and the pridomovy territory) is determined by each house otdelyyono depending on quantitative poyokazatel of the actual service taking into account providing an appropriate sanitary-and-hygienic, protivopoyozharny, technical condition of houses and constructions and the pridomovy territory soyoglasno to the standard list of services.
The standard list of services on a soderzhayoniya of houses, constructions and a pridomovy teryoritoriya treat: cleaning ladder a kleyotok, cleaning of the pridomovy territory, export and utilization of a firm household and negabayoritny waste, cleaning of cellars, tekhniyochesky floors and roofs, a technical obyosluzhivaniye of lifts, service of systems of scheduling, technical obsluzhivayony intra house systems warm and a vodoyosnabzheniye, a drainage system and a storm kanayolizatsiya, deratization, disinsection, an obsluyozhivaniye of dymoventilyatsionny channels, maintenance of systems of protiyovopozharny automatic equipment and a dymoudaleniye, maintenance household elektroplit, maintenance of constructive elements, engineering systems and tekhnicheyosky devices of houses and elements vneshnego the accomplishments, located in the priyodomovy territory, repair of the equipment sports and playgrounds, repair of the equipment of economic platforms, watering of yards, beds and lawns, preparation of houses for operation in autumn zimnij the period, cleaning and snow export, an ekspluyoatatsiya of registration plates of houses, clarification of domestic toilets and priyamkov, illumination of places of the general using, cellars, podkachivany waters, power supply of lifts, clarification of not manholes, periodic check, service and repair (including dismantle, transportation and installation after check) room means of the accounting of water and thermal energy and other direct costs.
Among problem questions, vozniyokayushchy zhiyolishchno-utilities in connection with granting, collecting a payment for housing-and-municipal uslugi. By article 32 of the Law it is established that the payment for housing-and-municipal services is charged monthly according to contract provisions. The size of a payment for komyomunalny services pays off, proceeding from the size of the approved prices/tariffs and indications of means of the account or on the norms approved in accordance with the established procedure.
Questions relatively about the account and fee are settled in service Rules on tsentralizovanyony heating, supply by cold and hot water and a drainage system, approved by the resolution KMU No. 630 from July 21, 2005. So, in the apartment (the house usadebnogo type) works on establishment of means of the accounting of water and thermal energy (kvartiryony means of the account) are carried out by the speyotsializirovanny organization, an ispolniyotel, the producer or the supplier at the expense of means of the consumer. Room means of the account are put by the performer on the user’s account. The periodic proyoverka, service and repair (in that chisle dismantle, transportation and installation) room means of the account are carried out at the expense of the performer.
Fee according to indications of kvartiryony means of the account is made only in case of account implementation in all tochkax a fence of cold and hot water in the apartment irrespective of existence of means of the account on inputs in an apartment house. Collecting a payment according to standards (normam) consumption in the presence of kvartiryony means of the account without their indications isn’t allowed. An exception is malfunction of means of the accounting of water and the teyoplovy energy, not subject an ustraneyoniya. Performer and consumer not imeyut rights to refuse the accounting of indications of means of the account.
In case of establishment of house means of the accounting of water in an apartment house where separate apartments oborudovany room means of the account, the poyotrebitel who has no room means of the account, pays services soglasyono to indications of house means of the account, disregarding a consumption of water of the performer, yuriyodichesky persons and individuals – the predyoprinimatel being sobstvenyonik or tenants of rooms in this house, and total expenses of water according to indications of all room means of the account. The difference is distributed between the poyotrebitel who do not have room means of the account, in proportion to a koliyochestvo of inhabitants of the apartment in case of an otsutyostviye vytokov from an all-house network that proves to be true the inspection act, the soyostavlenny performer in the presence of not less than two residents of the house.
At existence vytokov from an obshchedomoyovy network the consumers who do not have kvaryotirny means of the account, pay services in cold, hot water supply and a drainage system on established normativam (norms) in a month in which these vytoki are revealed.
In case of establishment of house means of the accounting of thermal energy the potrebiyotel pays services according to their pokayozaniye in proportion to the heated area (volume) of the apartment (the house of usayodebny type) under a condition an osushchestvleyoniya the owner, a balansoderzhatel of the house and/or the performer of actions for warming of places of the general using of the house. In case of failure such the meyoropriyaty consumer doesn’t pay for an otoyopleniye of places of the general using of the house.
In case heating devices in the apartment (the house of farmstead type) oborudovany or the capacity of devices of heating (radiators) doesn’t answer with devices distributors of tepyolovy energy rasyochetny, the consumer pays services in results of calculations of expenses of heat, kotoyory are carried out by the performer on metodike, approved central orgayony the executive authority concerning housing and communal services.
Indications of house means of the account snimayutsya the representative of the performer once a month in the presence of the supplier and the consumer spokesman. Indications of room means of the account act in film a poyotrebitel monthly. Means of the accounting of water and the thermal energy, established in the apartment (the house of farmstead type) and on input in an apartment house, are subject to periodic check.
Periodic check of means ucheta water and thermal energy is carried out in time, not exceeding one month. During this time the consumer pays sootyovetstvuyushchy services in such order:
- on the centralized supply by cold and hot water – to soglasnosrednemesyachny indications of means ucheta for the last three months;
- on the centralized heating – it agrees monthly average account pokazaniyamsredstvo for the previous otopitelyyony period.
In case of malfunction of means of the accounting of water and the thermal energy which is not subject to elimination, the payment for services from the moment of its identification is brought according to standards (norms) of consumption.
In case of emergence of doubts in correctness of indications of room means of the account the consumer in an ustanovlenyony order can carry out their vneyoocheredny checking at own expense on what informs the performer. If the vyyavyolenny mistake in indications falls outside the limits, provided in the passport of room means of the account, the performer should carry out recalculation of a payment for a water consumption and/or a thermal eneryogiya from the date of the last check or an ustayonovleniye of means of the account if its proyoverka wasn’t carried out, by reduction of a payment by percent which exceeds established limits of accuracy for etogo such as means of the account, till a mistake vyyavyoleniye.
Services in a drainage system are paid by the consumer from calculation of volume of expenses of cold and hot water according to normativam (norms) of consumption or pokazayoniya of means of the accounting of water.
The settlement period for fee is calendar month. Playota for services is brought no later than the 20th date following settlement, if by the contract other term isn’t established. Fee system (monthly or advance) and a fee form (nalichyony or non-cash) are defined in a doyogovor between the consumer and an ispolniyotel. In case of application of advance system of fee the performer periodicheski, time in 6 months, carries out recalculation of a payment for actually predoyostavlenny services on what notifies a poyotrebitel.
Payment for the provided services vnositsya the consumer according to indications of means of the accounting of water and thermal energy or the approved standards (norms) of consumption on the basis of the payment document (the pay book, the platezhyony receipt, etc.) or according to contract usloyoviya on establishment of means of the account. In the payment document predusmatrivayutsya columns for the indication of the current and previous indications of means of the accounting of water, thermal energy, a difference in these indications or approved normativov (norms) of consumption, a tariff for a danyony type of service and the sum which is subject to payment for the provided service.
In case of absence in the apartment (the house of farmstead type) and on inputs in the mnogokvaryotirny house of means of the accounting of water and thermal energy the payment for provided uslugi is collected according to the established standards (norms) of consumption:
- on the centralized supply by cold and hot water and a drainage system – at the rate on one person and on maintaining a personal part-time farm;
- on the centralized heating – from calculation for 1 sq.m (cubic meter) otapyolivayemy area (volume) of the apartment (house of farmstead type) and in addition for excess of settlement capacity of priyobor of heating (radiators) according to the legislation.
S. PETROV, the main spetsiayolist of department of the legislation concerning the industry and the rights of consumers Deyopartamenta of a civil zakonodatelyyostvo and business Ministeryostva of justice of Ukraine, Kiev.
(On newspaper materials Legal practice).