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A new apartment owner sometimes doesn’t even suspect how many problems he will now have to solve. And one of them, who now has the responsibility for replacing risers in a privatized apartment? After all, along with the living space, communications, including communal ones, also become property.
Pipe replacement
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All those communications that are located inside the apartment and which only its owner and residents can use do not raise questions about their ownership. This is private property. And the owner can do whatever he sees fit with them. Of course, if this does not lead to damage to the property of his neighbors or their other rights and interests.
The apartment owner has the right:
- replace old ones metal pipes to more modern ones;
- install new mixers, counters;
- increase or decrease the number of plumbing fixtures;
- change batteries, etc.
He does all this of his own free will and at his own expense. This does not raise any surprise or doubt about the legality of such actions. Ownership includes the ability to make such changes and improvements.
But when it comes to replacing risers, that is, those thick pipes that connect all floors and apartments into a single whole, opinions differ.
Residents believe that the management company is responsible for the common property, but that company says that since this is the common property of the apartment owners, everything related to the replacement or repair of pipes is their responsibility. Let's try to figure out who is right.
Who should change risers in a privatized apartment
It is worth remembering that in addition to the right of ownership, there is also the so-called owner’s burden, which consists of the need to maintain one’s property in good condition and pay for its maintenance.
Including for:
- water;
- sewerage;
- other benefits of civilization.
And here the question arises: who is the owner of those pipes and their branches that are no longer inside each private apartment, but connect it with utilities that supply water, heat and light to the building itself?
They, as it turns out, relate to common property belonging to all owners. That is, those pipes in the apartment are personal, and the risers are shared.
Legislation
The legislation confirms this. In 2006, the government approved the Rules regarding the maintenance of common property.
They list what exactly applies to property recognized as common:
- Equipment serving more than one apartment.
- Drainage system (i.e. sewerage), etc.
But confirmation of the fact that all pipes, including water, heating, gas and sewer pipes are the property of the residents of the house, does not answer the question of who should change the risers in a privatized apartment? The same document talks about such a concept as repairs (current and major).
Definition of current repairs given in the Rules technical operation housing stock, includes such positions regarding all pipelines inside a residential building, such as:
- installation;
- replacement;
- restoration of performance.
Owner's responsibilities
According to the Rules, making decisions about the need for current and especially overhaul lies with all owners.
Owners of apartments and common property are obliged to:
- ensure the normal technical condition of common building communications;
- make decisions about their repair if the need arises.
But the owners themselves can only repair the equipment that directly serves their apartment. Because it is their private property. And to repair common property, they transfer part of their responsibilities to a management company, which solves all technical problems for them.
This agreement is gratuitous, that is, it implies payment of a certain amount monthly. Its payment is also the responsibility of the apartment owner. In return he receives maintenance the entire communal household.
Responsibilities of the Housing Office
Carrying out all repair work required to maintain it in good working order technical condition water supply, sewerage, heating and other risers are the responsibility of the housing office. Or another company with which a corresponding agreement was concluded.
The basis for the work will be:
- plan for their implementation;
- an act indicating that any part of the riser needs repair to prevent an emergency;
- a leak or other problem occurs.
You can contact the housing office with an application, which they are obliged to consider and give a reasoned response.
At whose expense
All attempts to force residents to contact private offices or pay additional funds for repairing risers are illegal. Since this work is already carried out at the expense of the homeowners.
Every month you can see the line “maintenance and repair of housing” in notices for payment of utility services. The amount depends on the square footage of the apartment and the number of residents.
According to the norms of MDK 2-04.2004, there are two lists of works that are included in the rent. This includes:
- maintenance of various common property;
- technical and other maintenance of communications;
- emergency work;
- current repairs.
That is, all replacement, maintenance and repair work is already included in the already hefty rent.
Therefore, the housing office must change the sewer riser in a privatized apartment absolutely free of charge. It's already been paid for.
An exception is the case when repairs are required as a result of unauthorized repairs made by one of the apartment owners or any structural changes to the building's common communications. And if neighbors were injured as a result of such interference, then they will have to be compensated for the damage.
Frequently Asked Questions
Let's consider the questions that owners of privatized apartments often ask.
Replacing a sewer riser
Since the risers located outside the apartments and connecting several of them are common property, the management company (HOA, housing office, housing department, etc.) is responsible for the replacement. Due to those cash, which are received as part of the rent for “maintenance and repair of the common property of the house.”
Any attempts to force people to pay additionally for this work will be illegal.
When trying to reject a requirement to replace the riser, to defend your position, you should refer to regulatory documents:
- rules for maintaining common property apartment building;
- Methodological recommendations MDK 2-04.2004.
As proof of fulfillment of your responsibilities for timely payment of utilities, copies of the payment receipt can be attached to the application for repair work.
Replacing pipes in privatized housing
It all depends on where these pipes are located and how many apartments they serve. All pipes located inside the apartment are replaced at the expense of the owner. Work can be carried out by both management company specialists and other persons on the basis of a civil law contract.
This applies to:
- water supply, sewerage, heating pipes;
- counters, faucets and plumbing fixtures for individual use.
All common building communications are serviced management company at the expense of apartment owners. Current repairs includes the replacement of pipes if they are in poor technical condition.
Hello!
No, it is not legal if you have an agreement with the housing and communal services sector. Article 162. Management agreement for an apartment building
[Housing Code of the Russian Federation] [Article 162]
1. An agreement for the management of an apartment building is concluded with a management organization that has been granted a license to carry out activities for the management of apartment buildings in accordance with the requirements of this Code, in writing or in electronic form using the system by drawing up one document signed by the parties. When choosing a management organization by the general meeting of premises owners in apartment building A management agreement is concluded with each owner of the premises in such a house on the terms specified in the decision of this general meeting. In this case, the owners of premises in this building, having more than fifty percent of the votes of the total number of votes of the owners of premises in this building, act as one party to the concluded agreement.
1.1. In the case provided for in Part 13 of Article 161 of this Code, with each person who has accepted from the developer (the person providing the construction of an apartment building) after issuing permission to put an apartment building into operation, premises in this building under a transfer deed or other transfer document shall be concluded management agreement for an apartment building. Moreover, such persons act as one party to the concluded agreement if they constitute more than fifty percent of their total number.
2. Under an agreement for the management of an apartment building, one party (the management organization) on the instructions of the other party (the owners of the premises in the apartment building, the management bodies of the homeowners' association, the management bodies of a housing cooperative or the management bodies of another specialized consumer cooperative, the person specified in paragraph 6 of part 2 Article 153 of this Code, or in the case provided for in Part 14 of Article 161 of this Code, the developer) within an agreed period for a fee undertakes to perform work and (or) provide services for the management of an apartment building, provide services and perform work on the proper maintenance and repair of common property in such a house, provide public utilities owners of premises in such a building and persons using premises in this building, to carry out other activities aimed at achieving the goals of managing an apartment building.
2.1. The management agreement for an apartment building, concluded in the manner established by this article, must be placed by the management organization in the system in the manner established by the federal executive body exercising the functions of developing and implementing state policy and legal regulation in the field information technology, together with the federal executive body, which carries out the functions of developing and implementing state policy and legal regulation in the field of housing and communal services.
3. The management agreement for an apartment building must indicate:
1) the composition of the common property of the apartment building in respect of which management will be carried out, and the address of such a building;
2) a list of works and (or) services for managing an apartment building, services and works for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the management organization;
3) the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and the amount of payment for utilities, as well as the procedure for making such payment;
4) the procedure for monitoring the management organization’s fulfillment of its obligations under the management agreement.
4. The terms of the management agreement for an apartment building are established the same for all owners of premises in the apartment building.
5. The management agreement for an apartment building is concluded:
1) in the case specified in part 1 of this article, for a period of not less than one year, but not more than five years;
2) in the cases specified in parts 4 and 13 of Article 161 of this Code, for a period of no less than one year, but not more than three years;
3) in the case specified in Part 14 of Article 161 of this Code, for a period of no more than three months.
6. In the absence of an application from one of the parties to terminate the management agreement for an apartment building at the end of its validity period, such an agreement is considered extended for the same period and on the same conditions as provided for in such an agreement.
7. Unless otherwise established by the management agreement for an apartment building, the management organization is obliged to begin implementing such an agreement no later than thirty days from the date of its signing.
8. Changes and (or) termination of the management agreement for an apartment building are carried out in the manner prescribed by civil legislation.
8.1. Owners of premises in an apartment building unilaterally have the right to refuse to execute a management agreement for an apartment building, concluded as a result of an open competition provided for in parts 4 and 13 of Article 161 of this Code, after each subsequent year from the date of conclusion of the said agreement if, before the expiration of the term validity of such an agreement, the general meeting of owners of premises in an apartment building made a decision to choose or change the method of managing this building.
8.2. Owners of premises in an apartment building, on the basis of a decision of the general meeting of owners of premises in an apartment building, unilaterally have the right to refuse to fulfill the management agreement for an apartment building if the management organization does not comply with the terms of such agreement, and decide to select another management organization or change the method of managing this home.
9. Management of an apartment building, which is owned by a housing cooperative or in which a homeowners’ association has been created, is carried out taking into account the provisions of sections V and VI of this Code.
10. Thirty days before the termination of the management agreement for an apartment building, the management organization is obliged to transfer technical documentation for the apartment building and other documents related to the management of such a house to the newly selected management organization, homeowners’ association or housing cooperative or other specialized consumer cooperative, or in the case of direct management of such house by the owners of the premises in such a house to one of these owners, indicated in the decision of the general meeting of these owners on the choice of the method of managing such a house, or, if such an owner is not indicated, to any owner of the premises in such a house.
11. Unless otherwise established by the management agreement for an apartment building, the management organization annually during the first quarter of the current year submits to the owners of premises in the apartment building a report on the implementation of the management agreement for previous year, and also places the specified report in the system.
The resource supplying organization is responsible for the mode and quality of water supply within the boundaries of its operational responsibility. Maintenance of in-house engineering systems, as well as systems located outside the household and not included in the area of responsibility of the resource supplying organization, unless otherwise provided by the agreement with it, is carried out by a service provider, whom homeowners engage independently (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 8, 2011 No. 5686 /11).
The crux of the matter
An accident occurred on the water supply section between the main pipe and the border of the land plot on which the building was located. The emergency service fixed the leak, installed a temporary plug and recommended a complete replacement of the pipes from the building to the junction with the main pipeline. The water supply contract was concluded directly with the resource supply organization. That is, the consumer received water directly, without an intermediary - a utility provider. Therefore, the owner of the building turned to the resource supply organization (hereinafter referred to as the company) with a request to replace the pipes and restore the water supply. He was refused, citing the fact that the section of the emergency pipe does not belong to municipal networks.
It was established that the previous owner of the building connected to the main pipeline in 1973 without permission. And the section of pipe from the highway to the building was not on the company’s balance sheet. The owner of the building was recommended to register project documentation to external water supply networks and only then seek help.
The owner of the building, left without water, filed a complaint with the antimonopoly authority. Antimonopoly officials considered that the company was avoiding eliminating the accident and restoring water supply and infringing on the rights of the owner of the building. The company was charged with violating the Rules for the provision of utility services to citizens, approved by Decree of the Government of the Russian Federation dated May 23, 2006 No. 307 (hereinafter referred to as the Rules) and the Rules for the use of public water supply and sewerage systems in the Russian Federation dated February 12, 2006 No. 167.
By type of activity “water supply” the company had a market share of more than 35%. The Antimonopoly Service considered that the company violated Part 1 of Art. 10 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” and issued an order to eliminate violations.
In fact, the resource supplier had to prepare design documentation at its own expense, replace rotten pipes, put the “no man’s” section of the water supply system on its balance sheet and begin supplying water to the consumer. The society did not agree with this and went to court.
Trial
The arbitration court did not accept the company's arguments and confirmed the position of the antimonopoly authority. It was established that in 2002, a water supply agreement was concluded between the company and the owner of the building (consumer).
The judges rejected arguments that the accident occurred outside the boundaries of the company's responsibility, since it assumed an obligation to supply water. And the obligation to provide the service properly does not depend on whose balance sheet the damaged pipeline is located. After all, the company, as a resource supplying organization, bears responsibility for the regime and quality of water supply both under the contract and in accordance with clause 7 of the Rules.
The court recognized that the owner of the building is responsible for the water supply only within the boundaries of his land plot. Outside of them, water networks must be maintained by society. The appeal and cassation supported this verdict.
Position of the Supreme Arbitration Court of the Russian Federation
The Presidium of the Supreme Arbitration Court of the Russian Federation overturned the decisions of all three courts, satisfying the demands of society and invalidating the decisions of the antimonopoly authorities. The logic of the arbitrators' reasoning is as follows.
Unless otherwise provided by the contract with the resource supplying organization, repairs of in-house engineering systems are carried out by persons hired by the building owners (clause 7 of the Rules). The operational responsibility of the resource supplying organization is established for the mode and quality of water supply at the network boundary. And there is no reason to extend said liability beyond this boundary, that is, to the area where the accident occurred.
Thus, the conclusion of the lower courts that the company must eliminate accidents and maintain water supply networks in an area outside the area of responsibility was found to be unfounded. Consequently, Art. 10 of the Federal Law of July 26, 2006 No. 135-FZ was applied incorrectly.
The arbitrators emphasized that the responsibility for maintaining internal water supply networks is not assigned to the resource supplying organization, but to the service provider - a legal entity or entrepreneur who purchases utility resources from the resource supplying organization and provides utility services to the consumer (clause 3 of the Rules). And the consumer, if he wishes, can enter into an agreement with the service provider for servicing the water supply network located outside his land plot. If the consumer has not engaged such a contractor, the above-mentioned obligation can be assigned to the resource supplying organization only by agreement.
Understanding the boundaries of responsibility between the RSO, the management company and owners of residential premises in apartment buildings important to avoid controversial situations. IN judicial practice There are frequent cases of disputes between the RSO and the management company regarding operational responsibility for certain sections of utility networks, regarding which no agreement has been reached.
In half of administrative cases of this kind, the court takes the side of the RSO, in this case the Criminal Code incurs large losses. To avoid this and be insured against unwanted conflicts, you need to draw up an act of delimitation of responsibility.
Not all CGs are clearly defined in the legislation boundaries of operational responsibility and balance sheet inextricably linked with it. These concepts are most clearly presented in clause 1 of the Rules for cold water supply and sanitation (Resolution of the Government of the Russian Federation No. 644).
According to this document balance sheet boundary the property division boundary is recognized. It, in turn, determines the boundary of operational responsibility, that is, it indicates who will bear the burden of maintaining the facility: the management organization, the RSO or the owners. The same can be said about other communal resources.
The boundary of RSO's operational responsibility, if we are talking about power supply, extends to the point of connection of the common house meter with electrical network, included in the MKD. Responsibility of the management company - in-house power supply system And electrical devices, disconnecting devices for the apartment. The responsibility of residents is internal devices and devices after disconnecting devices in floor panels, meters in apartments.
Responsibility for heat supply is distributed as follows: RSO is responsible up to the point of connection communal metering device with the heating network included in the apartment building. The management company is responsible for the heating system risers, disconnecting devices on branches from the risers and for shut-off and control valves on the intra-apartment wiring. Residents' responsibility begins again within their home, they are responsible for heating devices and for branches from the heating system risers after the shut-off and control valves.
The responsibility of the RSO, when it comes to water supply and sanitation, extends to the point of connection of the common house meter with the water supply network included in the apartment building. Management companies are required to monitor the condition of hot and cold water supply risers, shut-off devices on branches from risers and shut-off and control valves on intra-apartment wiring. Owners of premises in apartment buildings are responsible for branches from the risers of the hot and cold water supply system after the shut-off and control valves, for the shut-off and control valves themselves and for plumbing equipment in apartments.
In the resource supply agreement, the balance sheet boundary separates utility networks, which are common property of the building (Article 36 of the Housing Code of the Russian Federation), from other utility networks. Therefore, let us recall what applies to common property(Resolution of the Government of the Russian Federation No. 491, Article 36 of the Housing Code of the Russian Federation):
- premises in apartment buildings that are not parts of apartments and are intended to serve more than one residential/non-residential premises in the house;
- intra-house engineering systems cold and hot water supply, gas supply, heating and electricity supply.
The boundaries of operational responsibility can be external and internal. In the first case, they share the spheres of competence of the RSO and the management company (the external border of the wall of the apartment building), in the second - the management company and the owners (the internal border of the wall of the apartment building).
External limits of operational responsibility
If we are talking about the external boundary of utility networks that are part of the common property of an apartment building, then the boundary of operational responsibility between the RSO and the management company will be considered the external boundary of the wall of the house, and if there is a common house meter for a certain utility resource, the place where this common house meter connects with the corresponding utility network, included in the MKD.
Separately, it is worth mentioning the external border of the gas supply networks included in composition of common property MKD. In this case, the boundary of operational responsibility between the RSO and the management company is the point of connection of the first shut-off device with the external gas distribution network.
Often the line of operational responsibility does not run along the wall of the house. Then, a fragment of a utility network located outside the outer wall, which, it would seem, formally belongs to the area of responsibility of the RSO, falls into the zone of the management company managing the apartment building. Its content threatens large losses, so you need to carefully approach the description of the boundaries of operational responsibility in the act of delineation of responsibility.
The case when the boundary of operational responsibility passes along the external valve can be considered controversial. This happens if the external section of the utility network is included in composition of common property. Then the RSO carries out maintenance of this utility network at a tariff approved by the owners of the premises in the apartment building. The responsibility of the management company is to offer such a tariff to the owners. Repairs, including emergency ones, are carried out at the expense of RSO.
What about ownerless utility networks? That is, with such networks that are not on the balance sheet of either the management company or the RSO and are not part of the common property. Typically, such networks are transferred to municipal ownership. In turn, the organ local government within thirty days from the moment the ownerless utility network is identified, he is obliged to identify the RSO whose utility networks are connected to the ownerless one (Clause 6, Article 15 No. 190-FZ).
The Federal Tariff Service will have to include the costs of maintaining such a network in the RNO tariffs for further regulation. Until this is done, energy losses in this disputed section of the network, as well as repair work, are carried out at the expense of the management company in proportion to actual consumption.
Internal operational boundaries
The boundary of operational responsibility between the management company and the owners when it comes to the internal boundary of the utility networks included in composition of common property MKD are:
- for heating - valves on the heating pipeline connections to the apartment radiator. If there are none, then the border passes along threaded connection in the radiator cap.
- for cold and hot water supply - a valve at the pipeline outlet from the riser. If it is not available, the border is welding seam at the pipeline outlet from the riser.
- for drainage - a socket of a shaped product (tee, cross, bend) on the riser of the drainage pipeline.
- for power supply - the place where the outgoing wire of the apartment electrical wiring is connected to the plug of the individual electricity meter, circuit breaker, RCD.
The boundary of operational responsibility between UK and owners (we are talking about the internal border building structures included in the common property of an apartment building) is inner surface apartment walls, window fillings and front door to the apartment.
Enclosing load-bearing structures, land plot (including children's and playgrounds, collective parking lots) on which the house is located, staircases, corridors, roofs and attics, as well as elevators are located in area of operational responsibility UK.
Judicial practice
Perhaps the main argument in favor of the importance of discussing in detail the boundaries of operational responsibility in a resource supply agreement will come from examples from judicial practice.
Managing organization filed a lawsuit to declare the terms of energy supply contracts invalid and for the obligation to transfer heating networks to the area of responsibility of the RSO. The court refused to satisfy the claims, since the Criminal Code agreed on the boundaries of the balance sheet, accepting the disputed section of the networks for its maintenance (Resolution of May 23, 2012 in case No. A63-9362/2011).
The court may make a different decision if the boundaries of the balance sheet in the act are indicated differently than along the external wall apartment building or at the installation point of the metering device. In this case, the act of delimiting balance sheet ownership is invalid (Determination of the Supreme Arbitration Court of the Russian Federation dated June 26, 2012 No. 6421/12 in case No. A14-11374/2010).
When concluding the contract, disagreements arose between the parties regarding the limit of operational responsibility, since there was no act of delimitation of responsibility, the court decided to determine the limit of operational responsibility in accordance with Rules for maintaining common property(Resolution of the Arbitration Court of the Central District dated May 21, 2015 N F10-1143/2015 in case N A68-2267/2014).
And according to the FAS Decree UO dated February 28, 2011 No. Ф09-443/11-С5, in a similar situation, there is no conflict concluded between the parties act of delimitation of responsibility the court concluded that the line of operational responsibility should run along the line of balance sheet ownership, in other words, along the line of division of utility networks between the owners.
If you have any questions, you can always contact us for advice. We also help management companies comply 731 RF PP on the Information Disclosure Standard(filling out the portal Housing and communal services reform, website of the Criminal Code, information stands) and Federal Law No. 209 (). We are always happy to help you!