Regulation of the relationship with the managing organization

Natalia V. Samosudova — Professor of «Organization of Construction and Property Management» Moscow State Construction University and the Graduate School of construction organization, expertise and real estate management.

The state’s attention to the problem of housing management after privatization and the emergence of private property in apartment buildings are concentrated mainly on the creation of legislative and normative-legal bases of management in the housing sector. At the same time the implementation of legal provisions in the field of management of apartment buildings (ICM) at the level of practical application due attention is not given. Especially it concerns the management, maintenance and repair of the common property of the apartment building, which includes a service elevator complex. This is confirmed by the payment rate for the maintenance and repair of the common property of an apartment building (Art. 154 LC RF), which is the cost of maintenance and repair of elevators alone is not defined and therefore not selected. In our opinion, such an approach in a market economy does not correspond to the creation of effective contractual relationship between the control organizations and service providers — organizations performing services for maintenance, operation and repair of elevators in apartment buildings.

This situation was typical for a situation where the housing stock, was mostly owned by the state, and the payment rate for housing was included almost all types of services provided based on the category of luxury residential building. The transition from a planned economy to market relations in the housing sector and outlined the need to define contractual relations with contractors and the allocation of separate indicators of payment for services rendered. For example, from the total maintenance as an independent indicator of export of selected solid waste and KGM (municipal solid waste and bulky waste), which has a positive impact on the implementation of this type of service. However, the service and maintenance of elevators has always remained in the structure of the index maintenance, which, in our opinion, does not allow to qualitatively assess the costly part of the service, reflecting the level of comfort of housing and apartment building as a whole.

At the end of 1990 in Moscow, with the development of housing and the creation of high-rise housing construction, plan some progress related to the search for sources to ensure the costs of maintenance and upkeep of elevators taking into account the need for repair and replacement of worn-out fleet of lift equipment. The Department of investment construction programs of Moscow city discussed the need for allocation of rates of pay for the maintenance of the proportion of the cost of service and maintenance of elevators.

The plan was to encourage the organizations of maintenance and upkeep of elevators in the contract with the management organization to determine the cost of the payment of such services, which, undoubtedly, would have affected the quality of the operation of elevators as part of the common property of apartment buildings. They discussed the question of the direct source of revenue for the organization of the service and maintenance of elevators. Various schemes have been proposed. The first scheme — rates multiplied by the number of registered residents of apartment buildings, including the owners and tenants of residential and non-residential premises. The second scheme — tariffs multiplied by the index of shares in the ownership of the common property of the apartment building. The value of the payment should be linked to quantitative and qualitative characteristics of the services provided, and should be considered the possibility of changing the tariff (increase or decrease) depending on the quality and time of the elevators.

Moscow Government to discuss these issues in 2001, at various levels, including the Coordinating Council for the development of self-government. With the adoption of the relevant regulations at the level of the Federation of Moscow City actually be able to create a financial basis for assessing the quality and level of safety of lifts for the uninterrupted service of residents of apartment buildings. Unfortunately, we have to admit that with the introduction of the Housing Code, which introduced a generalized indicator of payment for maintenance and repair, including the management of common property apartment building, complicated these issues. However, this does not mean that there is no way out. You must use the Civil Code giving civil system of contractual relations.

Contract management, maintenance and repair of the common property of the apartment building.

In Art. 156 LCD Russian legislator has provided the opportunity to determine the cost of paying for maintenance and repair, including the management of common property by the owners of apartment buildings. This means that the owners at the general meeting may decide to conclude contracts for the maintenance and repair of the common property, and to establish the actual amount of payment for services, including fees for maintenance and repair of elevators.

Why provided opportunities not used? There are a number of subjective and objective reasons. For objective reasons should include the inertia and passivity of the owners of apartment buildings. More than ten years have passed since the adoption of the federal law «On homeowners associations» in 1996, which granted the right by the owners enter into with contractors service contracts for maintenance and repair. However, the vast majority of owners are not active in the management of common property of his apartment building.

Another objective reason is that the administration of municipalities is much easier to establish the amount of planning and regulatory payment for maintenance and repair, including the management of municipal housing, and use it to determine the size of the budget to cover the costs and subsidies. It does not take into account the interests of managers and contractors, who in the absence of financial incentives has no motivation and interest in improving the quality of their work.

And finally, there is one serious reason. At the present time, thanks to the privatization of housing and the possibility of buying and selling property, in the same apartment building there is a group of owners with different socio-economic guidelines in relation to the consumption of services and payment for the consumed services. The owners have become established as a result of free privatization, in most cases, do not take the burden of responsibility for the maintenance and repair of the common property of his house. For this category of residents became entitled orders received from a city or municipality property, and the burden of responsibility for maintenance, repairs and utilities is maintained at the same level as for employers on social hiring in the house. And they are not interested in additional costs related to the improvement of quality of service, that is, in this category of owners retained the consumer, dependent position.

Homeowners who have become established as a result of its acquisition of the real estate market, especially in the primary market, as a rule, are willing to bear the additional costs for higher quality care and maintenance of the common property of an apartment building. But decisions are made at the general meeting of owners of apartment buildings, and they are not always accepted in favor of the latter.

In this context, the main instrument for regulating the relationship between the owners or the management company of an apartment building and the organization of the maintenance and operation of the lift must be a contract providing all regulatory required and optional list of works that are performed by the company for maintenance and operation of elevators, with detailed costing the value of all types of work performed. The conclusion of such a treaty should be initiated by the service and maintenance of lifts and not the managing organization. As a result, through the adoption of compromise agreements can find the best solutions for payment services. Consider several scenarios contracting.

Conclusion of the agreement during the transfer to the management and operation of the completed construction of an apartment building tenants and settlement: employers and future owners.

During this period, the investor (the customer, the developer), after acceptance of apartment buildings corresponding commission and signing of the state act, passes it to the contractual management and operation of the management organization. At this stage, management company, taking a house in the management and operation, enter into contracts with contractors, including companies by service elevators, for the provision of maintenance and operation of apartment buildings.

In the same period, the management organization contracts with citizens — owners of apartments (space) — and gives them the keys to the residential and non-residential premises. This means that in the period of settlement of the citizens for various reasons, including the imperfection of the system of registration of ownership of real estate, do not have property rights, respectively, according to the law, the owners are not complete and do not bear the burden of responsibility for the maintenance of the common property of an apartment building. This category of citizens, while the status of rights holders, we can say, with illegal settlement, is able to use common property, including the lift facilities, without thinking or caring about its functioning. This illiterate and indifferent attitude of the inhabitants of damages, especially the common property of all future owners of the house, including an expensive lift facilities.

The next, more interesting and, unfortunately, in the bulk, category instills irresponsible tenants — tenants of residential premises under contracts of social hiring. This category of citizens arise under the investment contract as part of the premises of an apartment building is transferred to the owner of municipal apartments under contracts of social hiring. And, as a rule, this category of citizens is absolutely not informed about the responsibility for the maintenance of the common property, since the concept of «common property» to the employer is irrelevant. The responsibility belongs to the owner. As approved by the Government of the Russian Federation form of social tenancy agreement were not disclosed particular notions about the content, operation of the property of an apartment building.

How should I act in these cases, those organizations that cooperate with the management company and the name of the organization, serving the lift facilities? Contract only with the management company, if any, does not have a trust management agreement with the owner — the city or municipality — is not enough. It is necessary to take into account the fact that at this stage and the city (municipality) has no registration of ownership of the property has arisen and, therefore, is only the copyright holder. In other words, according to the law, property owners are responsible for their future joint property, at the moment there is simply no!

In these cases you need to do is very clear: together with the acceptance of the house to enter into a tripartite agreement with a pretty tough conditions prescribed in the period of settlement. The third party in this agreement will be the one who will use the services elevators in this period: the employer having the social contract of employment, or the right holder, having a contract of sale. At this point, I repeat, only the organization, serving the elevator industry, can set rules for using elevators and cost of the work. The conditions of operation of freight and passenger elevators, and what the ways to protect their integrity.

The fact is that even if the permit to transport and raise such goods, such as cement, it is necessary to understand that after the delivery of the 22nd floor of this kind of cement and other materials purity elevators and all its mechanisms will have considerably reduced . And often this is the reason that the elevator and a half, or even half a year just goes down. It is proposed in the agreement to use the phrase «It is forbidden to violate the rules of operation of elevators (not to use the passenger elevators for the transport of construction materials and waste without packaging).» You must be installed and other restrictions when using lifts: time use, load capacity, etc.

Signing a contract with the owners.

From the moment when the user premises of an apartment building becomes the owner of the copyright owner, to him shall be modified terms of contractual relations. What does this mean? In Moscow and in many other municipalities of the following principles: the owner of a single housing having residence registration, pays for the maintenance and repair of housing is almost at the same rates established by the Government of Moscow, and that the tenant space on the social contract of employment. If you previously did not have an alternative right holder the possibility to change the conditions of use of the lift and reduce the amount of payment for its use, it is now becoming the owner, he uses the opportunity to pay for the maintenance and repair of housing at the rate established by the Moscow government and the municipal administration.

It should say a few words about the size and structure of the cost of the rate, but not the tariff for the maintenance and repair of housing. In Moscow, it is scheduled the standard value, defined as the cost of expenses for the maintenance and repair of 1 square meter of common property apartment building: maintenance and cleaning of entrances and cleaning the territory, taking into account the seasonality of the work, maintenance and repair in-house equipment, routine preventive and emergency operation, maintenance and repair of elevators and other works. This value is set annually by the Moscow government to determine the budgetary expenditure on the above goals for housing owned by the city of Moscow, for the previously mentioned property owners and housing allowance payments (subsidies).

In most municipalities, this plan-standard value corresponds to the actual costs of maintenance and repairs. Accordingly, the different categories of residents (owners, employers under contracts of social hiring, other categories of employers) have a flat rate (differentiated only in terms of quality and comfort of housing) to calculate the payments for maintenance and repair of 1 square meter of the common property of an apartment building. In Moscow this figure is a significant difference. Since 1998, when the index was first introduced planning and regulatory rate to determine the budgetary expenditures and payments of housing subsidies, the figure is divided into two components of value. The first, smaller, is for residents who, on the basis of it, the calculations carried out for the maintenance and repair of the common property of his house. Second, most of the rates — a component of the budget in the form of grants or subsidies to city management companies for the maintenance and repair of the common property of an apartment building. In 1999, its value is six times greater than the first, for ten years, she has consistently declined, however, in 2009, cost the city more than twice the cost of people, irrespective of their property status (qualification). It should be noted that on such welfare provided by the Government of Moscow, the majority of residents do not even know, and therefore any change in contractual relations with an increase in the cost of work, although in favor of more high-quality service, the residents perceived negatively.

Consequently, the management company, operating on the principles of payment, based on the rates set by the government of Moscow and established the owners of apartment buildings (usually higher), forced to bargain at the conclusion of the contract with the organization for servicing elevators of the very conditions, the price of work and contract whole.

This point is very important because without a certain performance standard maintenance costs elevators, the managing organization is not interested in the allocation of sufficient funding to pay for current and emergency repairs and, especially, scheduled preventive maintenance. Especially if in the period preceding the normal operation (during the colonization), the events took place, which caused additional (unexpected) costs and expenses, this management company will continue to incur losses. Those funds that it receives, based on the rate of planning and regulatory flow of residents and the city’s budget, including subsidies and grants may not be enough.

It follows that at the conclusion of the contract the parties must clearly define the subject of the contract. House has lift — a level of comfort and accommodation, and, simultaneously, high risk, requiring a corresponding constant supervision. Because the contract must be prescribed by all possible types of work and conditions of their implementation (during the colonization, repairs, during normal operation, and the like). The more detailed and concrete will be spelled out conditions and maintenance of elevators, the more transparent and understandable for the parties is to determine the price of service.

Next item. Residents of apartment buildings created homeowners (HOA) and simultaneously transmits the common property of an apartment building in the management of the management organization. Naturally, the contract will be negotiated between the service elevators and management organization. It is very important point: in favor of whom the contract is made. It should contain all of the specific categories of persons or entities that are users of the service elevator, which it serves. I remind you: there are private owners — individuals and legal entities; has an owner or a municipal entity Federation premises which transferred to employers on social hiring. Furthermore, there may be tenants and subtenants residential and commercial premises from the owner — the municipality or the Federation; subnanimateli from employers on social employment; tenants or tenants from a private owner. In the diagram above, you can clearly see which categories of tenants are users of the elevator in the building complex (more than 20). And clearly in the contract should be specified and designated the responsibility of each user.

It should be noted that, regardless of the method of control: HOA (HBC), or management company — all the power in the defense of their interests in content and use of common property owners have the right. Therefore, it is important that agreement is based on the decisions of the general meetings of owners and in the annex thereto have to be referred to the responsibility of each user category. Only in this case there is the possibility of implementing the legal consequences of a breach in the use of expensive lifting equipment and there is the right to stand in court their claims and defend their interests.

The draft treaty is chosen form of management by the owners, so the first page of the surname, name and patronymic of the owners of premises. This is a direct two-way contract with the owner of an option that allows you to set the liability of the parties, including users, determine the cost of services and responsibility for the breach of contract and use. If the contract is concluded between the HOA (HBC), or managing organization, then, as mentioned above, you must specify the resolution of the general meeting of owners for the conclusion of such an agreement.

The contract should pay attention to paragraph 1.3. «The terms of this Agreement are the same for all the owners (individuals and entities) of an apartment building.» You can add more «residential and commercial premises.» Why is that? Because, according to the resolution of the LCD reconstruction and redevelopment of the Russian Federation (Art. 25-29 LC RF), non-residential premises may not only be on the first floor, they can occur anywhere. Accordingly, signing an agreement, the organization of the maintenance of elevators should know the actual structure of residential and commercial premises MCD and a contingent of users. It should be borne in mind that the reference of the BTI are only a month, precisely because during this period, you can change anything you want. It is advisable to periodically monitor and track these changes, because it is not only financing, but also the safety of elevators. In this regard, the contract should reflect the following paragraph: if the room MKD held construction, pereplanirovochnye and other repairs requiring special use of lifts, the owner is obliged for the period of work to conclude an agreement: a) to the management company, b) to the organization service elevators, specifying therein the extent of liability and redress.

In turn, the organization and the need to service elevators to insure their operations against all possible risks.

Attention is drawn to para. 2.2 of the contract: «Management Company implements management functions for the organization of maintenance and repair.» Management organization itself may not be the executor of the specific services on the maintenance, operation, repair, and enter into contracts with contractors on the basis of orders of the owners of the MCD, according to the list of works.

The contract must provide for cases when for any work involved third parties, that is, given «the order to third parties.» This capability is required to stipulate in the contract. In this case, the contract should reflect that responsibility to the owners themselves, not only the organization itself — the contractor, but is the responsibility of the managing organization, which attracted these artists. We should not forget that no organization serving the lift facilities — the contractor nor the management company as a representative of the customer, no HOA (HBC) are not users. Users of the services are specific individuals MKD, because in a contractual relationship with the managing organizations, homeowners associations (HBC) emphasis should be placed directly on those who use the service elevator service.

The following paragraph 4.1.7: «To take measures to curb the actions of third parties that impede or hinder the realization of the rights of ownership, use and to set limits, orders the owner of the common property in an apartment building.» This item is present in the contract is justified. Modern buildings of different heights on the upper floors is planned for occupancy by only one apartment, with access from the door of the elevator car on the large landing. Tenants of apartments tempted once used for the landing itself, and thus, limited access to services attics, roofs and even the elevators on each floor. Such cases are usually the subject of a lengthy trial, to return this type of property in common ownership.

I note that in Europe and America, such a situation is quite acceptable. According to local legislation, the common property of the MCD may not be in any way be alienable and individually use. A similar situation can be a basement, which also can be restricted or even blocked access to communications, including in elevators. This usually occurs in apartment buildings that were previously municipal. Then they emerged private owners sold the municipality parts of the basement. Access to technical equipment, including the elevator shaft is blocked, which is an obstacle for the implementation of maintenance and repair, and, of course, the real threat to the security of residence.

Additional agreements and annexes to the agreement.

Change the terms of the contract are not necessary. If you want something to change or add, should conclude additional agreements. In today’s market conditions is not working rigidity and confrontation, we must be able to find a consensus. If it is serious and well-considered each item of the contract, it is possible to find the necessary solution.

At the time, apartment buildings or premises of houses, that is, almost the entire housing stock, 90% owned by the state. But since 1990, all forms of ownership have been divided into five sub-species, and, accordingly, MUPy (municipal unitary enterprises) and disinformation SUE (State Unitary Enterprise, Directorate single customer) began to leave the market. In their place comes a private business. The MCD represented the owners of all types of ownership of the Russian Federation, and other categories of users of residential and non-residential premises. And all this must necessarily be reflected in the annex to the contract. Also, it should be clearly spelled out all the functions and the work to be performed on service, maintenance and repair of elevators, the whole range of elevator service. Before carrying out repair work must also conclude additional agreements on the types and cost of the work. There is no need to specify the value of services contracts. Terms of payment and the amount specified in the annex to the agreement, as this indicator is not constant and varies depending on various circumstances.

Carrying out maintenance work.

Before carrying out maintenance work is necessary to ensure the awareness of residents about the procedure, time and type of scheduled maintenance and operation of elevators. This information may be in the form of leaflets or manuals for that particular home, are, for example, from the concierge. The higher the awareness of residents about the kinds of ongoing operations and their value, the more interested users will be treated to their common property — the elevators. Practice has shown that in the MCD, where such information security of residents is carried out continuously, the results did not keep us waiting: not only adults, but children do not stay indifferent. After the relevant days of sanitary cleaning elevators, they not only take care of the lifting means, but they themselves often become our helpers, friends and guests by offering his house and porch supports the adoption order.

Service, maintenance and repair of elevators MKD — a separate line.

Question allocation of elevator service, that is, maintenance and repair of elevators in apartment buildings, from the total payments for «maintenance and repairs» in a separate independent component services is long overdue. But, unfortunately, to date neither at the State Duma, or at the level of the Moscow City Duma, nor at the level of the Moscow government’s understanding of the need to address this issue is not, although the discussion was conducted on many levels. However, it is clear that the need to increase the activity in its decision. It is advisable to Russian Association of Employers «National League of enterprises elevator and communal infrastructure» strengthen action in this direction with the release of all possible levels: municipal, of the Federation, the legislative and the executive levels of the Russian Federation. Can parliamentary initiative for changes and amendments to the Housing Code: Art. 154 Housing Code to make the item «fee for service, maintenance and repair of elevators.»

Only then will the real source of financial systems and the ability to repair elevators. This system repairs elevators are sufficiently financially independent from the overhaul of buildings. It is known that more than a quarter of passenger hoists in the MCD in the absence of repair are in critical condition, threatening the lives of people. And the situation from year to year will be exacerbated, if not reversed. I hope that the XV National Congress of Russian liftovikov include these issues in its priorities.

Question: Do you carry out more detailed advice and training?

NV Samosudova: Presented us the contract is too complex, full of the rights and obligations of the parties and, for sure, will cause a lot of questions. Therefore, we regularly conduct seminars for resursosnabzhayuschih and other organizations, employees of state housing inspection for all other students. The workshops in detail and explained in detail every item of the document, as well as other issues of reform and modernization of housing and communal services. Seminars are held in MGSU at the Faculty of the Graduate School of organizing the construction, assessment and management of real estate (VSHOSEUN). You may want to refer to my email address natalsamоs@mail.ги, and together we form the so-called personalized contract based on the conditions of a particular ICM, taking into account the work that your organization will perform: the content, maintenance and repair of and emergency operations.

Q: I was approached by the owners of an apartment house with a request directly to conclude a contract for maintenance of elevators. Does our company has the right to do?

NV Samosudova: In Sec. 9 Art. 161 Housing Code clearly states that the apartment house can be controlled by only one management company, while the legislator took the management and function of public services (Sec. 1, Art. 161 LC RF). Organization of service, maintenance and repair of elevators is a service provider, though not applicable to entities that provide public services. So if your organization will take over the management of common property and the MCD, neither a civil nor in the housing legislation of obstacles can not be. Examples of this are. In the new districts of Moscow, such as Kurkino, not the control, namely resursosnabzhayuschie company took over the management and operation. So it is not prohibited.

Q: Can I bring in the operation and maintenance of lifts?

NV Samosudova: Management Company nobody forbids transfer its functions or part of these functions to third parties, but it is necessary to explain to the residents of the home, the price of this service will not be included in the price index of «fees for maintenance and repair of common property» of the home, there payment for housing. Again raise the question of the contract with the management organization to allocate a certain percentage of the bet, which residents pay for housing, and from the budget that the city guides for this purpose.

Q: Management Company during its work on the management of the ICM at his own expense built and put into operation the UDF. The owners decided to change the ICM management organization (RO). Can the PP — the owner of the UDF — not to give the new management organization its property, although it this urge?

NV Samosudova: If this is your property vivo, and it is registered in the Federal Service registration rights have legal documents (certificate of ownership), then no one has the right to claim your property. Management Organization can offer any successor to redeem the property or lease it, including long-term lease with option to purchase.

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