New law on housing and communal services: rights and responsibilities of consumers, innovations in concluding contracts for the provision of services.

Ideological changes under the new Law "On Housing and Communal Services" and protection of quality services.

Housing and communal services reform: what to expect from co-owners of apartment buildings?

On November 9, 2017, the President of Ukraine signed the new Law of Ukraine "On Housing and Communal Services", which will come into force on June 10, 2018 (hereinafter - the Law).

Some of the innovations are expected to be launched later: from January 1, 2019. These are the points that:

- the consumer will also receive the right to demand from the manager and the executor of public utilities the penalty for low-quality or not in full rendered service (item 7 h. 1 item 7);

- the consumer will be obliged to pay a penalty in case of delay in payments for services; the amount of the penalty is not higher than 0.01% of the amount of debt for each day of delay (paragraph 10 of Part 2 of Article 7; paragraph 2 of Part 4 of Article 7; Part 1 of Article 26);

- benefits and subsidies for housing and communal services are paid to the consumer in cash - the launch of full monetization (Part 3 of Article 11);

- the manager must have in the staff an employee who has passed the certification for the profession of "manager (manager) of a residential building (group of buildings)" (paragraphs 1 and 2 of Part 5 of Article 18).

The new Law on Housing and Communal Services provides for a number of positive changes:

Liability is introduced for services not provided or not provided in full within the stipulated period - previously only the consumer was responsible.

All services are provided only on the basis of contractual relations.

The consumer chooses which service and on the basis of which contract he wants to receive:

1. Individual contract.

2. Collective agreement with the manager.

3. Collective consumer agreement - condominiums.

4. Status-quo individual contract (Part 7 of Article 14), in which the supplier is not responsible for the introduction of utilities in the consumer's apartment, as in option 1, and before the entry of these networks into the house. This option remains the default for inactive citizens who are not yet aware of their responsibilities and opportunities.

It is important that co-owners can choose different types of contracts for different utilities. At the same time, the consumer's responsibility remains individual - in the case of a collective agreement and the debt of one to the supplier will not turn off the whole house, and will deal only with a specific debtor.

Consider the differences between the three basic models of contractual relations for the provision of utilities in an apartment building (Article 14):

1. "INDIVIDUAL"

- with each individual owner;

- the responsibility of the contractor for the quality of service of indoor systems of an apartment building and engineering systems of the consumer's premises;

- a subscription service fee is charged;

- the only possible option for gas and electricity;

- maintenance, current repair of indoor systems of an apartment building - by the executor on the basis of the contract;

- overhaul of indoor systems of an apartment building, providing the provision of appropriate utilities, is carried out by co-owners or their authorized persons to perform such work at the expense of co-owners;

- maintenance and current repairs of indoor power and gas supply systems are carried out by the entity determined by the co-owners of the apartment building, at the expense of the co-owners.

2. "COLLECTIVE AGREEMENT WITH MANAGERS"

- the manager enters into contracts with suppliers on behalf of the co-owners of the house on the basis of a contract signed with him;

- responsibility of the executor to "entrance to the house";

- the cost of utilities does not include a fee for subscription service and a fee for maintenance of indoor systems of an apartment building;

- can be concluded only on condition of existence of the house knot (knots) of the account providing the general account of consumption of utilities in the house;

- maintenance, current and capital repairs of indoor systems of an apartment building are carried out at the expense of co-owners;

- the authorized person opens a current account with a special mode of use for each utility service, and the funds in such an account are the property of the co-owners of the apartment building;

- in the presence of debt for consumed utilities, the contractor applies with a claim (claim) to the relevant co-owner. Who is this co-owner, notifies the authorized person at the written request of the contractor within 10 calendar days. Otherwise, the executor has the right to file a claim (claim) for payment of the actual debt to the authorized person, and the latter after payment of the debt has the right of recourse (recourse) to the co-owner-debtor.

3. "AGREEMENT OF THE COLLECTIVE CONSUMER - ACMH"

- is a service provider association of co-owners of an apartment building on its own behalf;

- the conditions for concluding and executing such an agreement, as well as the relationship between the collective consumer and individual consumers are governed by the charter of such an association and the decisions of its authorized management bodies.

MAIN: the choice of the form of contractual relations is defined by the Law for the service of supply and distribution of natural gas, supply and distribution of electricity - now they will be provided solely on the basis of individual contracts (paragraph 2, part 2 of Article 14).

It should be recalled that many homes had general contracts for the supply of electricity, which allowed them to influence debtors by temporarily restricting the provision of this service. Now there will be no more such opportunity.

The situation with gas is really gradually improving: in addition to mandatory individual contracts, there is an obligation for gas services to provide all consumers with metering units, carry out individual accounting of consumption of relevant utilities in apartments (premises) of an apartment building (Part 2 of Article 17).

Now the city gas  in many cities decided to save and installed common gas meters, which significantly distort the real evidence. A common gas meter can be installed only with the consent of the co-owners of an apartment building in the manner prescribed by Article 10 of the Law of Ukraine "On Peculiarities of Exercising Ownership in an Apartment Building", which is additionally confirmed by the Law of Ukraine "On Amendments to the Law of Ukraine". gas "on the procedure for installing meters to natural gas consumers" from 21.12.2017. The latter prohibits the installation of common gas meters without the consent of the co-owners, disconnect the houses from the gas supply and clearly indicates the installation of individual gas meters.

The rights for the consumer appear:

- for non-payment of the cost of utilities (except for the supply of thermal energy) in case of their non-use (in the absence of meters) for the period of temporary absence in the dwelling (other real estate) of the consumer and other persons more than 30 calendar days, subject to documentary confirmation (item 6 part 1 of article 7);

- in the manner prescribed by law to disconnect from the district heating and hot water supply systems (paragraph 12 of Part 1 of Article 7).

Also, the consumer will now be able to see in their payments how much the contractor spends on network maintenance - from the tariffs for utilities is allocated a fee for subscriber service - maintenance and repair of indoor systems. Previously, this fee was included in the total payment. Now these costs must be paid separately. Either the utility service provider - as a subscription service fee, or the manager - then such costs will be included in the management service fee.

Contributions for installation, maintenance and replacement of commercial metering units for heat supply, hot water, centralized water supply are included in the fee of the utility utility and are reflected separately in the invoice (paragraph 3, part 1 of Article 17). This rule should allow the development of a competitive market for utilities and allow the consumer to choose another service company that should eliminate the monopoly.

For the artist:

The law provides for the right of the utility service provider to limit (terminate) its provision to a specific consumer in an apartment building, regardless of the chosen model of organization of contractual relations. Thus, even in the case of a collective agreement, the provision of a service may be suspended only to a specific debtor.

Moreover, the Law clearly defines the procedure for such termination. In particular, the contractor must notify the debtor of the forthcoming disconnection at least 30 days and thus give the opportunity to either repay the debt or challenge the legality of the termination of the service.

In addition, the Law allows utility service providers to terminate their provision to those consumers who have refused to enter into utility service contracts.

There is nothing to add here: if you refuse the contract - then you do not need the service. However, it should be remembered: the consumer is not exempt from paying for housing and communal services received by him before the conclusion of the contract (paragraph 2 of Part 1 of Article 9; Part 5 of Article 13).

For the manager :

Manager - a natural person - entrepreneur is obliged to pass professional certification or have in the staff under an employment contract at least one employee who has passed professional certification for compliance with the qualification requirements of the profession "manager (manager) of a residential building (group of houses)" (para. 1 and 2 part 5 of Article 18).

to organize and act as the customer of works on capital repairs of the general property.

The price for these services is set separately in the contract with the consumer.

For co-owner associations:

1. The most important innovation for condominiums is that the Law in Part 2 of Art. 2 states: "The relations arising between the co-owners, as well as between the co-owners and the association of co-owners of an apartment building are not subject to regulation of this Law."

This rule emphasizes once again that condominiums are not a "supplier" or provider of housing and communal services, nor is it a "business entity" at all (Article 4 of the Law of Ukraine "On the association of apartment building co-owners"). Just as condominiums do not charge either "rent" or "service fee". That is, condominiums as an association of co-owners do not enter into any agreements with the co-owners for the provision of services - these services are provided by home suppliers as a collective consumer of condominiums.

2. It will also be useful for condominiums to specify that able-bodied persons living together and / or registered in the consumer's dwelling use all housing and communal services on an equal footing with the consumer and are jointly and severally liable for obligations to pay for housing and communal services. 3 Article 9). This means that residents of non-privatized apartments pay the same as apartment owners in this house - no one exempted them from paying contributions, of course, unless another decision is made by the general meeting and more than 50% of the co-owners vote for it.

The Law tried to prescribe all the conditions as much as possible, but there are still loopholes and difficulties with further implementation:

1. The law provides for obligations for city gases to provide metering units for individual consumers, but does not specify at whose expense these measures will be carried out. There is talk of compensation for the self-installed metering device, and funding for these measures has not been allocated - GorGas is waiting for an explanation from the Cabinet of Ministers and the NERCEC by the end of February.

2. A new concept is introduced - "marginal cost of housing management." This means that the costs of managing an apartment building in general, and the management fee in particular are covered by benefits and subsidies for housing and communal services, but at the end of January for many condominiums it became a problem - changes from 01.01.2018 to the Cabinet Of Ukraine of March 4, 2002 № 256 updated Procedure for financing local budget expenditures for the implementation of measures to implement state social protection programs through subventions from the state budget, which obliged all service providers if they want to receive compensation for benefits already provided to consumers and subsidies, open current accounts with a special regime of use in the Treasury. This resolution also included non-condominiums among service providers. As of February 5, 2018, the problem has been partially solved, but there is still no promised monetization for residents.

3. It is supposed that people can choose the manager now through carrying out competition of the City Council with obligatory drawing up of the protocol on such decision. Part 6 of the Transitional Provisions of the Law stipulates that in apartment buildings in which no condominiums have been established by this Law, the executive body of the local council is obliged to announce and hold a competition to appoint a manager within three months of receiving the minutes of the meeting of apartment building co-owners. request to appoint a manager. A decision on this issue is considered adopted by the meeting of co-owners if the owners of apartments and non-residential premises, the area of which together exceeds 50 percent of the total area of all apartments and non-residential premises of an apartment building, voted for it.

This case is extremely negative: it is your property - and it makes no sense to let go of managing it. We are already seeing examples of irresponsibility when such competitions were held in Odesa and Dnipro and the same FSWs were again managed.

4. The manager was given the opportunity on the basis of an agreement with the co-owners (collective agreement) of the apartment building to lease, establish an easement on the common property of the apartment building (paragraph 5 of Part 3 of Article 8). In this case, you should very carefully and accurately work out the terms of the contract - the price at whose expense the payment will be received, where to use the proceeds.

5. Two new responsibilities are introduced for the individual consumer:

- to allow into their housing (other real estate object) the manager, utilities or their representatives in the manner prescribed by law and contracts for the provision of relevant housing and communal services, to eliminate accidents, troubleshoot sanitary and engineering equipment, its installation and replacement, technical and preventive inspections, etc.