How to change the boundaries of operational responsibility. Disputes over determining the boundaries of utility networks of the mkd

One of the most painful issues when concluding contracts with resource supply organizations (RSOs) for HOAs, housing cooperatives and management companies is the delimitation of so-called operational responsibility and the definition of its boundaries. Practice shows that for HOAs and housing cooperatives, this issue often becomes relevant when accidents occur on networks that are not related to the common property of the owners in an apartment building, when, due to a recklessly signed agreement, the responsibility for repairing these networks is assigned to the HOA and housing cooperatives.

Additional meters of engineering communications impose on the management organization (and therefore on the owners of apartment building premises) an additional financial burden for their maintenance and repair, which is sometimes beyond the power of the HOA, and also imply inevitable costs to cover losses of communal resources.

Regulatory regulation

When considering this issue, you should first of all turn to the Civil Code, which governs all energy supply contracts. According to Art. 539 of the Civil Code of the Russian Federation, under an energy supply agreement, the energy supplying organization undertakes to supply energy to the subscriber (consumer) through the connected network, and the subscriber undertakes to pay for the received energy, as well as to comply with the regime of its consumption stipulated in the agreement, to ensure the safe operation of the energy networks under its control and the serviceability of the devices used by it and equipment related to energy consumption. An energy supply contract is concluded with the subscriber if he has a power receiving device that meets the established technical requirements, connected to the networks of the energy supply organization, and other necessary equipment, as well as providing metering of energy consumption.

The general provisions of the Civil Code of the Russian Federation regarding the boundaries of operational responsibility have been developed in such regulations as:
Federal Law of March 26, 2003 No. 35-FZ “On Electric Power Industry”;
Rules for the functioning of retail electricity markets during the transition period of the formation of the electric power industry, approved. Decree of the Government of the Russian Federation dated August 31, 2006 No. 530 (hereinafter referred to as the Electric Power Industry Rules);
Rules for non-discriminatory access to electric energy transmission services and the provision of these services, approved. Decree of the Government of the Russian Federation dated December 27, 2004 No. 861 (hereinafter referred to as the Access Rules);
Rules for the use of public water supply and sewerage systems in the Russian Federation, approved. Decree of the Government of the Russian Federation dated February 12, 1999 No. 167 ( as amended on July 29, 2013)(hereinafter referred to as the Water Supply Rules);
Rules for maintaining common property in an apartment building, approved. Decree of the Government of the Russian Federation dated August 13, 2006 No. 491;( as amended on May 14, 2013.)
Circular letter of the Gosstroy of Russia dated October 14, 1999 No. LCh-3555/12 “On clarifications on the application of the Rules for the use of public water supply and sewerage systems in the Russian Federation.”( The text of the letter was not officially published)

Operational responsibility and balance sheet ownership

Basic concepts. In the listed acts, the concept of the boundaries of operational responsibility invariably stands next to the concept of the boundaries of balance sheet ownership, while a general definition for neither one nor the other is not enshrined in the legislation. Meanwhile, there are a number of definitions within the framework of regulation of various energy supply contracts. So, in accordance with clause 1 of the Water Supply Rules:
balance sheet boundary - the line of division of elements of water supply and (or) sewerage systems and structures on them between owners on the basis of ownership, economic management or operational management;
operational responsibility line - the line dividing elements of water supply and (or) sewerage systems (water supply and sewerage networks and structures on them) on the basis of duties (responsibility) for the operation of elements of water supply and (or) sewerage systems, established by agreement of the parties. In the absence of such an agreement, the boundary of operational responsibility is established along the line of balance sheet ownership. Regarding the supply of thermal energy, there is no such definition at all, but paragraph 31 of the letter of the Federal Tariff Service of Russia dated 02.18.2005 No. SN-570/14 states that supplied thermal energy is thermal energy supplied to the thermal energy consumer (consumers) at the border of operational responsibility ( balance sheet).

The most complete definitions of the concepts under consideration relate to the supply of electrical energy. According to clause 2 of the Access Rules:
act of delimitation of balance sheet ownership of electric networks - a document drawn up in the process of technological connection of energy receiving devices (power installations) of individuals and legal entities to electric networks, defining the boundaries of balance sheet ownership;
act of delimitation of operational responsibilities of the parties - a document drawn up by the network organization and the consumer of services for the transmission of electrical energy in the process of technological connection of power receiving devices, defining the boundaries of responsibility of the parties for the operation of the corresponding power receiving devices and power grid facilities;
balance sheet boundary - the line of dividing electric power facilities between owners on the basis of ownership or possession on another basis provided for by federal laws, defining the boundary of operational responsibility between the network organization and the consumer of electric energy transmission services (the consumer of electric energy in whose interests an agreement for the provision of electric energy services is concluded transmission of electrical energy) for the condition and maintenance of electrical installations.

From the analysis of legal acts it follows that the line of balance sheet ownership divides utility networks based on ownership or other legal possession, and the line of operational responsibility presupposes a dividing line based on the burden of maintaining utility lines.

When concluding resource supply agreements for apartment buildings, the balance sheet boundary will separate the utility networks, which are the common property of the owners of the premises (Article 36 of the Housing Code of the Russian Federation), from other utility networks. In this regard, it is important to understand what belongs to common property.

According to clause 5 Rules for the maintenance of common property, the common property includes in-house engineering systems of cold and hot water supply and gas supply, consisting of risers, branches from the risers to the first disconnecting device located on the branches from the risers of the said disconnecting devices, collective (common house) cold and hot water meters , the first shut-off and control valves on the branches of the intra-apartment distribution from the risers, as well as mechanical, electrical, sanitary and other equipment located on these networks.

The common property includes an intra-house power supply system, including networks (cables) from the external boundary established in accordance with clause 8 of these Rules, to individual, common (apartment) electrical energy meters, as well as other electrical equipment located on these networks (clause 7 of the Rules for the maintenance of common property).

By virtue of clause 8 of the rules under consideration, the outer boundary of electricity, heat, water supply and sewerage networks, information and telecommunication networks (including wired radio broadcasting networks, cable television, fiber optic networks, telephone lines and other similar networks) included the composition of the common property, unless otherwise established by the legislation of the Russian Federation, is the outer boundary of the wall of an apartment building, and the limit of operational responsibility in the presence of a collective (common house) metering device for the corresponding communal resource, unless otherwise provided by an agreement between the owners of the premises and the provider of utilities or RSO, is the point of connection of the collective (general house) metering device with the corresponding engineering network included in the apartment building. The outer boundary of the gas supply networks that are part of the common property is the point of connection of the first shut-off device with the external gas distribution network (clause 9 of the Rules for the maintenance of common property).

Thus, the boundary of balance sheet ownership when concluding resource supply agreements for apartment buildings is always the external boundary of the wall of such a house, and the boundary of operational responsibility is not established imperatively - it can:
established by agreement of the parties;
coincide with the point of connection of the collective (common building) metering device with the corresponding utility network included in the apartment building;
coincide with the border of the balance sheet (for owners of apartment buildings this is the external wall of the house).

Thus, specifying clause 8 of the Rules for the maintenance of common property, you can refer to clause 14 of the Water Supply Rules, which states: if there is agreement, the delimitation can be established along the well (or chamber) to which devices and structures are connected to connect the subscriber to the public water supply or sewer network. Regarding heating networks, it is possible to set the boundary of operational responsibility on the wall of the thermal chamber at the subscriber's input or at the first disconnecting devices (Resolution of the Federal Antimonopoly Service of the North Caucasus Region dated May 28, 2009 No. A53-9063/2008-C2-41). All of these options must be agreed upon in the act of delineating operational responsibilities.

Litigation

An analysis of legislation and judicial practice allows us to conclude that if there is no agreement between the management organization and the RSO on the issue of determining the boundary of operational responsibility, the latter is determined by the boundary of the balance sheet, which is the external wall of the apartment building.

The problematic issue is the need to sign this act. By virtue of Art. 543 of the Civil Code of the Russian Federation, the essential terms of the energy supply contract, without which the contract is void, include the condition of ensuring the maintenance and safe operation of networks, devices and equipment. By agreeing on the boundaries of operational responsibility, the parties provide for the procedure for the maintenance and operation of utility networks and equipment. The act of delineating operational responsibilities is a technical document, a form that allows reflecting such agreement. In addition, all the regulatory documents reviewed also require the signing of this act when concluding a resource supply agreement.

However, the act of delimiting operational responsibility takes place when an agreement is reached between the RSO and the subscriber on this issue, and if this is not achieved, the boundaries of responsibility are determined according to the boundaries of the balance sheet. Consequently, the act of delineating operational responsibilities may not always be present. The same is evidenced by the analysis of judicial practice on disputes about the terms of contracts that arise during their conclusion: courts sometimes even exclude from the text of the contract the appendices that contain this act.

So, we can draw the following conclusion: in the absence of an act of delimitation of operational responsibility, the boundary is established at the point of connection of the collective (common house) metering device, and in its absence - along the boundary of the common property of the owners of the apartment building premises.

In turn, the specified property may only include in-house life support systems that end with the outer boundary of the wall of the house and are intended to serve more than one room in a given house. Therefore, if the management organization is offered to take on the burden of responsibility for utility networks located outside the apartment building or serving more than one apartment building (regardless of location), then it can safely refuse and insist on establishing the boundaries of operational responsibility along the external wall of the house.

For example, the Sixth Arbitration Court of Appeal rejected the developer’s request to compel the management organization to accept external utility networks for power supply, storm drainage, and water supply sewerage for maintenance and maintenance. At the court hearing, it was established that these communications are intended to serve more than one residential and (or) non-residential premises in several apartment buildings, and not in one apartment building and, therefore, do not meet all the criteria established by law for the common property of an apartment building (resolution dated July 17 .2009 No. 06AP-2631/2009). Conversely, the management organization failed to prove the illegality of including thermal routes and hot water transit pipelines passing through the basements of houses, a hot water boiler in the basement of a house and other transit pipelines into municipal property (and their further lease to RSO). Despite the fact that these objects are located in the basement of an apartment building, they are not common property, since they serve more than one apartment building, and also since the external boundary of the wall of the house cannot be the boundary of transit heating networks (Resolution of the Federal Antimonopoly Service of Ukraine dated May 18, 2009 No. F09- 2962/09-C6).

In addition, as practice shows, problems when concluding an agreement and delineating operational responsibilities arise when the balance holder of the section of utility networks from the wall of the apartment building to the networks on the balance sheet of the RSO is not known. These plots are often ownerless, but necessary to supply the house with resources (and are located on the adjacent land plot, which is part of the common property). As a rule, RNOs try to place the burden of maintaining such sections of networks on the management organization and owners of apartment building premises, citing the fact that the maintenance of these sections is not taken into account in the tariffs. Meanwhile, even in this situation there are no legal grounds for delineating operational responsibilities for connecting to utility networks included in the balance sheet of the RSO. Let us stipulate once again that this provision is valid in the absence of an agreement of the parties expressed in the act, since by virtue of clause 1 of Art. 421 of the Civil Code of the Russian Federation, legal entities are free to enter into an agreement. According to paragraph 4 of this article, the terms of the agreement are determined at the discretion of the parties. The courts, when resolving these disputes, note that the RSO has the right to apply to the regulatory body with documents confirming the costs of paying for services for the transfer of resources over networks that were not transferred to it for operation, in order to account for them and compensate for them in the subsequent period of tariff regulation (FAS resolutions VBO dated March 24, 2009 No. A29-5292/2008, dated September 23, 2008 No. A11-11702/2007-K1-6/37).

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2. Boundaries of balance sheet ownership and operational responsibility of the parties.

*2.1. The boundaries of balance sheet ownership and operational responsibility between the consumer (subconsumer) and the power transmission organization (main consumer) for the technical condition and maintenance of adjacent electrical installations are fixed in the act of delimiting the balance sheet ownership of electrical installations and operational responsibility of the parties.
The boundary of operational responsibility may not coincide with the boundary of balance sheet ownership, which is determined by the ownership right of the consumer and the power transmission organization (the main consumer) to individual elements of the electrical network, what is noted in the act of delimiting the balance sheet ownership of electrical installations and the operational responsibility of the parties.
2.2. The limit of operational responsibility between the consumer and the power transmission organization for the technical condition and maintenance of electrical installations with voltage up to 1000 V is established:
1) in the case of an overhead branch - at the point of attachment of the power line wires to the first insulators on the building or on the pipe stand, or at the input terminals of the first switching device installed on the input device of the consumer's building;
2) in the case of cable input - on the lugs of the power cable connected to the input terminals of the first switching device installed in the input device of the consumer’s building.
The power transmission organization is responsible for the technical condition of contact connections at the boundary of the balance sheet and at the boundary of the operational responsibility of the electrical network in houses that belong to housing organizations, institutions and other non-productive consumers.
2.3. The limit of operational responsibility for the technical condition and maintenance of electrical installations with voltages of 1000 V and higher is established:
1) on the connector of the overhead line bushing on the outside of closed switchgears or at the wire outlet from the tension clamp of the portal tension garland of insulators of open switchgears;
2) at the ends of cable or air inputs of supply or distribution lines.
The technical condition of the connections specified in subparagraphs "1) and "2) is the responsibility of the organization that operates the substations (switchgears).
The boundary of responsibility for the condition and maintenance of power lines with a voltage of 1000 V and higher, having branches (blind or through disconnectors) that belong to different organizations, is established on the support of the main line, where the tap is made.
The organization that owns the main line is responsible for the technical condition of the clamps that connect the tap.
*2.4. The limit of operational responsibility between a consumer - an individual, an association of co-owners (owner) of apartment buildings and/or the owner of electrical networks for the technical condition and maintenance of adjacent electrical installations is established:
1) for apartments in multi-storey buildings on the output terminals of the calculated metering devices of floor or apartment electrical panels or the input terminals of switching devices, if the latter are installed inside the apartment;
2) for individual houses:
in the case of a branch from a power line with a bare wire - at the point of attachment of the power line wires to the first insulators on the building or on the pipe stand (for air input);
in the case of cable entry or the use of an insulated wire when branching from a power line - at the ends of the power cable or insulated wire on the input device of the building, if the input distribution device is located inside the building, or on exit ??? terminals of the calculated metering device, if the input distribution device and the metering device are located outside the building.
The power transmission organization is responsible for the condition of contact connections at the boundary of operational responsibility and at the input and output terminals of sealed settlement metering devices. .
2.5. Another justified limit of operational responsibility may be established, which is determined by the characteristics of the operation of electrical installations or relay protection and automation devices (RPA) and communications (requirements of PTB note ES).
**2.6. For the maintenance and operation of electrical installations, the business entity, which, in accordance with the act of balance sheet ownership and operational responsibility of the parties, is responsible for the operation of these electrical installations, has the right, on the basis of an appropriate agreement, to attract any organization that has the right to perform such work.
*2.7. If the electrical networks of the power transmission organization are connected to electrical networks that, on the basis of ownership rights, do not belong to any business entity and through which electrical energy is transmitted to the consumer’s technological electrical networks, the boundary of operational responsibility and the point of sale of electrical energy is established at the boundary of the consumer’s balance sheet..
Such electrical networks, in accordance with the procedure established by the legislation of Ukraine, must be transferred to the economic management of the power transmission organization to whose networks they are connected .

How to determine the boundaries of balance sheet ownership and operational responsibility in a resource supply agreement? Is it possible to change them against the will of the RSO if the corresponding acts were previously signed by the subscriber?

Utility service providers from different regions of the country turn to our company for legal assistance when disputes arise with RSO in the process of concluding and executing contracts. Most of the disputes arise regarding the determination of the delivery points of the relevant resource and the boundaries of operational responsibility under the contract. In order to reduce losses on networks, RSOs strive to establish the delivery point as far as possible from the end consumer, which is absolutely unprofitable for the other party to the contract, since in addition to losses, the manager of the apartment building also bears the burden of maintaining such utility networks.

Using the accumulated experience in similar cases, we will consider a method for legally determining delivery points and the boundaries of the operational responsibilities of the parties. Thanks to the recent determination of the RF Armed Forces, this has become possible in relation to already concluded agreements.

Concepts and regulations

The concepts of delivery points, as well as the boundaries of balance sheet ownership and operational responsibility are presented in legislative acts regulating the procedure for supplying the corresponding resource:

in the Rules for the Organization of Heat Supply (approved by Decree of the Government of the Russian Federation dated 08.08.2012 No. 808);
in the Hot Water Supply Rules (approved by Decree of the Government of the Russian Federation of July 29, 2013 No. 642);
in the Rules for cold water supply and sanitation (approved by Decree of the Government of the Russian Federation of July 29, 2013 No. 644);
in the Rules for the supply of gas to meet the household needs of citizens (approved by Decree of the Government of the Russian Federation of July 21, 2008 No. 549);
in the Basic Provisions for the Functioning of Retail Electricity Markets (approved by Decree of the Government of the Russian Federation dated May 4, 2012 No. 442).

Despite the fact that in the listed legislative acts the concepts of the point of delivery and the boundaries of balance sheet ownership and operational responsibility differ, their essence still boils down to the following.

Delivery point– the place of fulfillment of the obligations of the RSO, which is located at the place of installation of the control center, and in its absence, at the border of the balance sheet.

Balance sheet limit– the boundary between networks based on ownership.

Operational Responsibility Limit– the boundary of division of networks based on the imposition of the burden of maintenance, which runs along the boundary of the balance sheet, unless the parties to the agreement have agreed otherwise.

Changing boundaries with the consent of the owners

The provisions of the Housing Code of the Russian Federation, the Rules for the provision of utility services, as well as the Rules for the maintenance of common property regulate the relationship under the resource supply agreement, since it is concluded by the utility provider with the RSO for the purpose of providing utility services to citizens. In accordance with the Housing Code of the Russian Federation, under an apartment management agreement, the executor is responsible to the owners for the maintenance of common property in the house.

The common property of the owners of premises in an apartment building includes, among other things, engineering communications located inside the house (clauses 5 – 7 of the Rules for the maintenance of common property) or outside it on a land plot that is part of the common property in an apartment building (clause “g” clause 2 of the Rules for the maintenance of common property), and intended for the maintenance of this house.

In accordance with clause 7 of the Rules for the maintenance of common property, the control center is installed at the border of the networks that are part of the common property of the owners of premises in the apartment building, and refers to the common property.

According to clause 8 of the Rules for the maintenance of common property, the external boundary of the networks that are part of the common property is the external boundary of the wall of the apartment building, and the boundary of operational responsibility in the presence of the control center of the corresponding communal resource is the place of connection of the meter with the corresponding engineering network of the apartment building. An agreement between the owners of the premises and the utility service provider or RSO may establish a different limit of operational responsibility.

Consequently, the boundary of the balance sheet is the outer boundary of the wall of an apartment building or the boundary of a land plot in the case when the boundaries of the plot are determined on the basis of state cadastral registration data and when the utility networks located within the boundaries of this land plot serve exclusively one house. The boundary of balance sheet ownership is at the same time the boundary of operational responsibility, unless the owners of the premises have established a different boundary.

The installation location of the control unit is the boundary of the networks that are part of the common property in the apartment building.

There are differences regarding the outer boundary of the gas supply networks: this is the point of connection of the first shut-off device with the external gas distribution network.

Thus, the RSO can change the boundaries of operational responsibility only by agreement with the owners of premises in the apartment building, who have signed acts of delimitation of operational responsibility with boundaries that go beyond the balance sheet (or have made this decision).

Acts of delimitation

The boundaries of operational responsibility and balance sheet ownership are established by the parties when concluding an agreement and determine which areas of engineering equipment will be serviced by the utility service provider. In order to avoid disputes during the execution of the contract with RSO, we recommend that performers sign the above-mentioned acts at the stage of concluding the contract. The following must be taken into account.

Acts of delimitation of balance sheet ownership and operational responsibility are signed by the parties in the process of technological connection of consumer networks to RSO networks; they can also be signed (in the absence of previously drawn up acts) in the process of concluding an agreement with RSO.

In accordance with Decree of the Government of the Russian Federation dated August 13, 2006 No. 491, local self-government bodies must determine the boundaries of the land plot related to the common property of the house for each apartment building. The boundaries of the land plot that is part of the common property in the MKD determine the boundaries of balance sheet ownership and operational responsibility, which must be recorded in the relevant acts with the RSO. Consequently, if the boundaries of a land plot are larger than the area of the apartment building, the maintenance of engineering communications passing through this land plot is assigned to the management company on the basis of a management agreement.

If state cadastral registration has not been carried out in relation to the land plot, the boundary of the balance sheet of the networks is the external wall of the apartment building.

Ownerless networks

Quite often, utility networks are not the responsibility of any party to a resource supply agreement, that is, they are ownerless. Who is responsible for maintaining these networks and paying for losses of utility resources in them?

According to the current legislation, if a section of networks between the MKD networks and the DSO networks is ownerless, when setting the tariff for the DSO, the costs of maintaining, repairing and operating this section of the networks are taken into account. This is what it says:

in the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply” (Part 4, Article 8, Parts 5, 6, Article 15);
in the Federal Law of December 7, 2011 No. 416-FZ “On Water Supply and Sanitation” (Parts 5, 6, Article 8);
in the Federal Law of March 26, 2003 No. 35-FZ “On Electric Power Industry” (Part 4, Article 28).

It is illegal to blame consumers and providers of utility services for losses of utility resources in ownerless sections of networks. This conclusion regarding electricity losses was made in the Decision of the Supreme Arbitration Court of the Russian Federation dated October 28, 2013 No. VAS-10864/13.

We establish the boundaries of utility networks according to the law

When concluding an agreement with RSO

The ideal option for the manager of an apartment building is to establish legal boundaries of operational responsibility when concluding an agreement with the RSO. But how can this be achieved if the RSO insists on different boundaries of responsibility? The manager should not rush to sign acts delineating operational responsibilities on illegal terms.

In accordance with civil law, a contract is considered concluded if an agreement is reached between the parties on all the essential terms of the contract. The legislator also included the condition on the limit of operational responsibility as an essential condition of the energy supply agreement. This condition is agreed upon by the parties by signing an act of delineation of operational responsibilities.

Consequently, if RSO proposes to conclude an agreement with an act of delimitation of operational responsibility, in which the boundaries go beyond the common property of the owners of premises in the apartment building, it is necessary to sign such an agreement with a protocol of disagreements regarding the boundaries of responsibility. In the protocol of disagreements, it is necessary to indicate the condition on the boundaries of operational responsibility with reference to clause 8 of the Rules for the maintenance of common property: the boundary of operational responsibility runs along the outer boundary of the wall of the apartment building (the boundary of the land plot that is in the common shared ownership of the owners of the premises in the house).

When considering disputes regarding the settlement of disagreements when concluding energy supply contracts, the courts approve such contracts in relation to the conditions on the boundaries of operational responsibility. Examples from practice include the decisions of the Supreme Court AS of November 19, 2015 in case No. A29-10092/2014, the ZSO AS of November 9, 2015 in case No. A75-1441/2015, the SKO AS of December 11, 2015 in case No. A25-953/2014 .

If the network boundaries are not agreed upon in the agreement with RSO

If the parties did not go to court to resolve disagreements when concluding a resource supply agreement and the protocol of disagreements remained unsigned by the RSO, if disputes arise regarding the volumes of supplied resources and the limits of responsibility, the agreement will not be recognized by the court as not concluded, since the condition on the limits of operational responsibility can be regulated by law.

In Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 7, 2010 No. 3409/10, the court came to the conclusion that the absence of an act of delimitation of balance sheet ownership agreed upon by the parties cannot indicate that the parties did not conclude an agreement. In the absence of an act of delimitation of the operational responsibilities of the parties, the boundary of operational responsibility is established according to the balance sheet, and the latter is determined on the basis of ownership.

If the agreement with RSO establishes network boundaries not according to the law

As a rule, an agreement is concluded for a certain period and is considered extended on the same terms if neither party declares within a certain period of time its intention to conclude an agreement on new terms.

In the manner established by the resource supply agreement, the utility service provider has the right to declare termination of the agreement and the conclusion of a new agreement on different terms. In the new agreement, he will be able to achieve agreement on the boundaries in the wording he proposed (if necessary, in court).

Recognition by the court of the terms of the agreement on establishing the boundaries of networks as void

Now let’s consider the option when, when concluding an agreement with RSO, in the acts of delimitation of balance sheet ownership and operational responsibility, boundaries were agreed upon that went beyond the common property of the owners of premises in the apartment building, and in the process of executing the agreement, the parties had a dispute about payment for heat losses.

By the ruling of the Supreme Court of the Russian Federation dated December 21, 2015 in case No. 305-ES15-11564, the case was sent for a new trial to the court of first instance with recommendations to establish whether there was an expression of will of the owners of the premises in the apartment building to move the balance sheet boundary beyond the outer boundary of the wall of the apartment building and change the composition common property.

When reconsidering the case, the court of first instance found that the act of delimiting balance sheet ownership and operational responsibility was inconsistent with mandatory rules of law, as well as the absence of a decision by the owners to classify the disputed section of utility networks as common property. The agreement with RSO regarding the delineation of operational responsibility was declared void, RSO was refused to recover losses from the management company for the disputed section of the networks.

Arbitration courts, when considering such disputes, already use this definition of the Supreme Court and make decisions to impose on RSO the burden of maintaining and servicing utility networks outside the common property of the owners of premises in apartment buildings, as well as the obligation to pay for losses on such networks. For example, in the decisions of the Eleventh Arbitration Court of Appeal dated 04/20/2016 in case No. A72-9399/2015, the Fifteenth Arbitration Court of Appeal dated 04/05/2016 in case No. A53-23569/2014, the Decision of the Arbitration Court of the Ulyanovsk Region dated 01/27/2016 in case No. A72-9399/2015, when adopting judicial acts, the arbitrators referred to the above-mentioned determination of the RF Armed Forces.

The points of supply of utility resources (regardless of the presence or absence of public utility facilities) must be located on the border of the balance sheet, which runs along the border of the common property of the owners of premises in the apartment building.

The boundary of operational responsibility runs along the boundary of the balance sheet, unless a different boundary is agreed upon by the parties to the resource supply agreement in the relevant act and unless there is a decision by the owners to move the boundary.

The easiest way to coordinate the boundaries of utility networks is during the process of concluding a contract, including in court.

The terms of the concluded agreement and signed acts of delimitation, which contradict the rules binding on the parties to the resource supply agreement, are void in the absence of a decision by the owners of the premises in the apartment building to establish other boundaries of the common property in the apartment building.

Made in response to a claim by a heat supply organization against the management company for the recovery of losses in the network section from the installation site of the control unit (pipeline entry point into the apartment building) to the balance sheet boundary, defined in the delimitation act as the point of exit (tie-in) of the pipeline with coolant from the central heating substation.

One of the most painful issues when concluding contracts with resource supply organizations (RSOs) for HOAs, housing cooperatives and management companies is the delimitation of the operational responsibilities of the parties and the determination of the boundaries of balance sheet ownership. Practice shows that for HOAs and housing cooperatives, this issue often becomes relevant when accidents occur on networks that are not related to the common property of the owners in an apartment building, when, due to a recklessly signed agreement, the responsibility for repairing these networks is assigned to the HOA and housing cooperatives.

In this article you will read:

How to differentiate between the operational responsibilities of the parties and balance sheet ownership
Key problems of delimiting the boundaries of small residential buildings

Delimitation of operational responsibilities of the parties, As practice shows, for HOAs and housing cooperatives it often becomes a pressing issue when accidents occur on networks that are not related to the common property of the owners in an apartment building, when, due to a recklessly signed agreement, the responsibility for repairing these networks is assigned to the HOA and housing cooperatives.

Regulatory regulation of the operational responsibilities of the parties

When considering the issue of delimiting the operational responsibilities of the parties, you should first of all turn to the Civil Code, which governs all energy supply contracts. According to Art. 539 of the Civil Code of the Russian Federation, under an energy supply agreement, the energy supplying organization undertakes to supply energy to the subscriber (consumer) through the connected network, and the subscriber undertakes to pay for the received energy, as well as to comply with the regime of its consumption stipulated in the agreement, to ensure the safe operation of the energy networks under its control and the serviceability of the devices used by it and equipment related to energy consumption.

An energy supply contract is concluded with the subscriber if he has a power receiving device that meets the established technical requirements, connected to the networks of the energy supply organization, and other necessary equipment, as well as providing metering of energy consumption.

Division of operational responsibilities of the parties and balance sheet attribution

So, in accordance with clause 1 of the Water Supply Rules:

balance sheet boundary - the line of division of elements of water supply and (or) sewerage systems and structures on them between owners on the basis of ownership, economic management or operational management;
operational responsibility line - the line dividing elements of water supply and (or) sewerage systems (water supply and sewerage networks and structures on them) on the basis of duties (responsibility) for the operation of elements of water supply and (or) sewerage systems, established by agreement of the parties. In the absence of such an agreement, the boundary of operational responsibility is established along the line of balance sheet ownership. Regarding the supply of thermal energy, there is no such definition at all, but paragraph 31 of the letter of the Federal Tariff Service of Russia dated 02.18.2005 No. SN-570/14 states that supplied thermal energy is thermal energy supplied to the thermal energy consumer (consumers) at the border of operational responsibility ( balance sheet).

established by agreement of the parties;
coincide with the point of connection of the collective (common building) metering device with the corresponding utility network included in the apartment building;
coincide with the border of the balance sheet (for owners of apartment buildings this is the external wall of the house).

Conclusion of an agreement with the North Ossetia during the transition period: features and new rules

Litigation regarding the delimitation of operational responsibilities of the parties

SIXTH ARBITRATION COURT OF APPEALS

The operative part of the resolution was announced on July 9, 2013.
The full text of the resolution was made on July 15, 2013.
The Sixth Arbitration Court of Appeal composed of:
presiding Mikhailova A.I.
judges Getmanova T.S., Golovnina E.N.
when keeping the minutes of the court session by the secretary of the court session Kulik E.S.
when participating in the meeting:
— from the limited liability company "Domoupravlenie-12": did not show up;
— from the open joint-stock company "Amur Utility Systems": did not show up;
- from the Administration of the city of Blagoveshchensk: did not show up;
- from the Department of Housing and Communal Services of the Blagoveshchensk City Administration: did not show up;
- from the Property Management Committee of the municipal formation of the city of Blagoveshchensk: did not appear;
— having considered the appeal of the Blagoveshchensk City Administration in a court hearing
to the decision of 04/22/2013
in case No. A04-8363/2012
Arbitration Court of the Amur Region
accepted by judge S.M. Fadeev
according to the claim of the limited liability company "Domoupravlenie-12"
to the open joint-stock company "Amur Utility Systems", the municipal formation of the city of Blagoveshchensk represented by the Administration of the city of Blagoveshchensk
about the obligation to take action
third parties: Committee for Property Management of the Municipal Formation of the City of Blagoveshchensk, Department of Housing and Communal Services of the Administration of the City of Blagoveshchensk

installed:

Limited Liability Company "Domoupravleniye-12" (hereinafter referred to as Domoupravleniye-12 LLC) filed a claim with the Arbitration Court of the Amur Region against the open joint-stock company "Amur Communal Systems" (hereinafter referred to as OJSC "AKS"), the municipal formation of the city of Blagoveshchensk in the person of the Blagoveshchensk city administration (hereinafter referred to as the Blagoveshchensk city administration) about the obligation to repair the sewer outlet located at the address Blagoveshchensk, st. Institutskaya, 17/1 in the section from the outer wall of a residential building to the sewer well.
The Committee for Property Management of the Municipal Formation of the City of Blagoveshchensk and the Housing and Communal Services Department of the Administration of the City of Blagoveshchensk were involved in the case as third parties who do not make independent claims regarding the subject of the dispute.
By a court decision dated April 22, 2012, the claim was satisfied against the administration of the city of Blagoveshchensk, which is obliged to repair the sewer outlet. The claim against AKS OJSC was rejected.
Having disagreed with the court's decision, the administration of the city of Blagoveshchensk filed a complaint with the appellate court, in which it asked to cancel the decision and refuse to satisfy the claim against it.
The persons participating in the case did not send their representatives to the court hearing; they were duly notified of the place and time of consideration of the complaint.
Having examined the case materials, the Sixth Arbitration Court of Appeal established the following circumstances.
LLC "Domoupravlenie-12" is the management company of an apartment building located at the address: Blagoveshchensk, st. Institutskaya, 17/1.
LLC "Domoupravlenie-12" is also the provider of public services for the supply of water and the reception of wastewater of the specified residential building on the basis of an agreement for the supply (receipt) of water and (or) the reception (discharge) of wastewater dated December 1, 2011 N 1706, concluded with the resource supply company organization - JSC "AKS".
During 2012, the management company received requests from residents of the building related to a leaking sewer pipe in the basement of the said house. The owners of the residential building also contacted the Blagoveshchensk city administration directly with these complaints.
In connection with complaints from residents about flooding in the basement, Domoupravlenie-12 LLC sent a letter to AKS OJSC on 02/08/2012 with a request to repair the pipe in the area from the outer wall of the house to the well.
In response, AKS OJSC, with reference to Decree of the Government of the Russian Federation No. 307 of May 23, 2006, “On the procedure for providing utility services to citizens,” indicated that the sewer outlet is part of the common property of the owners of residential premises in an apartment building and its repairs are the responsibility of the owners residential premises. It also referred to the fact that KUMI of the city of Blagoveshchensk did not transfer the specified sewer outlet to it under the lease agreement for municipal property dated July 16, 2005 N 003-AKS/B, and therefore it does not provide its maintenance.
On June 27, 2012, Domoupravlenie-12 LLC appealed to the administration of the city of Blagoveshchensk and KUMI of the city of Blagoveshchensk, as the owners of external networks, with a request to repair the sewer outlet.
07/3/2012 The Housing and Communal Services Department of the Blagoveshchensk City Administration responded that the sewer outlet is the property of the owners of the apartment building, the burden of maintaining which must be borne by the owners of this residential building.
KUMI of the city of Blagoveshchensk, in its response dated July 4, 2012, indicated that repairing the sewer outlet is not possible due to the fact that this sewer outlet is not the property of the municipality.
Direct requests from residents were forwarded by the Housing and Communal Services Department of the Blagoveshchensk city administration to Domoupravlenie-12 LLC, with a proposal to independently repair the sewer outlet, with reference to the responsibilities of the management company.
Believing that since the outer boundary of the sewerage network is the outer boundary of the wall of an apartment building, and the defects in the sewer outlet are located in the area from the outer boundary of the house to the well, the plaintiff reads that the responsibility for repairing it lies not with the management company, but with the defendants. This argument was the basis for the plaintiff's filing of this claim.
Satisfying the claim, the court of first instance came to the conclusion that the person obliged to repair the sewer outlet is its owner - the administration of the city of Blagoveshchensk.
Having re-examined the case based on the evidence available in it, the arbitration court of appeal did not find grounds to satisfy the appeal in connection with the following.
In accordance with Article 210 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), the owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract.
According to Article 158 of the Housing Code of the Russian Federation (LC RF), the owner of premises in an apartment building is obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining common property in an apartment building in proportion to his share in the right of common ownership of this property by paying a fee for the maintenance and repair of residential premises and contributions for major repairs.
Clause 11 of the Rules for the use of public water supply and sewerage systems, approved by Decree of the Government of the Russian Federation of February 12, 1999 N 167 (hereinafter referred to as Rule N 167), establishes that the supply (receipt) of drinking water and (or) the reception (discharge) of waste water is carried out on the basis of an energy supply agreement , relating to public contracts concluded by the subscriber (customer) with the water supply and sewerage organization.
Clause 14 of Rules No. 167 establishes that an act delineating the operational responsibilities of the parties for water supply and sewer networks and structures on them is attached to the agreement. The demarcation can be established by the well (or chamber) to which devices and structures are connected to connect the subscriber to the public water supply or sewerage network. In the absence of such an act, the limit of operational responsibility is established according to the balance sheet.
According to paragraph 2 of the Rules for the maintenance of common property in an apartment building and the rules for changing the amount of payment for the maintenance and repair of residential premises in the case of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building of inadequate quality and (or) with interruptions exceeding the established duration, approved by Decree of the Government of the Russian Federation of August 13, 2006 N 491 (hereinafter referred to as Rules N 491), the composition of the common residential property includes mechanical, electrical, sanitary and other equipment located in an apartment building outside or inside the premises and serving more than one residential and (or) non-residential premises (apartment).
According to paragraph 5 of Rules No. 491, the common property includes in-house engineering systems of cold and hot water supply, consisting of risers, branches from the risers to the first disconnecting device located on the branches from the risers, the specified disconnecting devices, collective (common house) cold and hot metering devices water, the first shut-off and control valves on the branches of the intra-apartment distribution from the risers, as well as mechanical, electrical, sanitary and other equipment located on these networks.
The common property includes an in-house engineering drainage system, consisting of sewer outlets, fittings (including bends, transitions, pipes, revisions, crosses, tees), risers, plugs, exhaust pipes, drainage funnels, clearings, branches from risers to first butt connections, as well as other equipment located in this system.
The external boundary of electricity, heat, water supply and sewerage networks, information and telecommunication networks (including wired radio broadcasting networks, cable television, fiber optic networks, telephone lines and other similar networks) included in the common property, unless otherwise established legislation of the Russian Federation, is the outer boundary of the wall of an apartment building, and the limit of operational responsibility in the presence of a collective (common building) metering device for the corresponding utility resource, unless otherwise established by agreement of the owners of the premises with the utility service provider or resource supplying organization, is the connection point of the collective (common building) device accounting with the corresponding engineering network included in the apartment building (clause 8 of Rules No. 491).
As can be seen from the case materials, when concluding an agreement for the supply (receipt) of water and (or) the reception of waste water dated December 1, 2011 N 1706 between AKS OJSC and Domoupravldenie-12 LLC, the parties did not establish the boundaries of balance sheet ownership and operational responsibility for water supply and sewerage networks and structures on them.
At the same time, in accordance with paragraph 14 of Rules No. 167 and paragraph 5 of Rules No. 491, the specified boundary should be accepted as the external boundary of the wall of an apartment building.
Since the sewer outlet of the house on the street. Institutskaya, 17/1 is located in the section from the outer wall of the house to the sewer well; it is not included in the common property of the apartment building and, accordingly, in the area of responsibility of Domoupravlenie-12 LLC.
At the same time, the specified equipment is not included in the area of responsibility of AKS OJSC due to the fact that it was not transferred to it under the lease agreement for municipal property dated July 16, 2005 N 003-AKS/V, concluded by it with KUMI of the city of Blagoveshchensk, as can be seen from the act of transfer of property, which is Appendix No. 1 to the agreement.
According to the specified act, KUMI of the city of Blagoveshchensk transferred to JSC AKS the sewer network A/CEM., commissioning date 09/01/1983, with a length of 2310.0 (m).

The specified section of the sewer network includes the sewer section of house No. 17/1 on the street. Institutskaya, which is 154 (m).
According to the technical passport of the sewer network of block No. 405 dated March 28, 2008, inv.

Coordination of the boundaries of balance sheet ownership and operational responsibility (Sholomova E.V.)

N 01-1001448, the length of the sewer pipe (water drainage) from the sewer well (SC) of house N 17/1 on the street. Institutskaya - KK1 to KK9, through KK2, KKZ, KK4, KK5, KK6, KK7, KK8 is 154 m.
Thus, the sewer outlets of house No. 17/1 on the street. Institutskaya from the outer wall of the house to the sewer wells was not leased by the administration of the city of Blagoveshchensk to JSC AKS.
Since the administration of the city of Blagoveshchensk did not lease these sewer outlets to OJSC "AKS", and only the house's intra-house drainage system to the outer boundary of the wall of this house is maintained by LLC "Domoupravlenie-12", the obligation to maintain the controversial sewer outlet No. 1 of building No. 17/ 1 on the street Institutskaya from the outer wall of the house to the sewer wells lies on the municipality of the city of Blagoveshchensk.
The arguments of the administration of the city of Blagoveshchensk that there is no information about the sewer outlet in the register of municipal property cannot be taken into account by the court, since the proper execution of documents confirming the fact of transfer of the disputed property into municipal ownership is not a basis for releasing the administration of the city of Blagoveshchensk from the obligation for the maintenance of this property assigned to it by force of law.
The fact of a malfunction of the sewer outlet and its location was established by the court of first instance based on the results of the examination, according to which the cause of flooding in the basement No. 1 of the apartment building No. 17/1 on the street. Institutskaya is a malfunction of sewer outlet No. 1, resulting in the obstruction of sewerage drains through the pipelines of the specified outlet. The indicated obstruction of the pipeline is approximately located at a distance of 2 m from the outer boundary of the wall of the house. To eliminate the causes of the malfunction of sewer outlet No. 1, according to the expert, it is necessary to carry out work to re-route the sewer outlet with a complete replacement of pipes from the basement of the building to the sewer well.
Under such circumstances, the court considers it proven that the disputed faulty equipment is in the ownership of the Blagoveshchensk city administration, which entails its obligation to maintain and repair this equipment.
In this regard, the court of first instance reasonably satisfied the claim filed by Domoupravlenie-12 LLC, obliging the administration of the city of Blagoveshchensk to repair sewer outlet No. 1 of building No. 17/1 on the street. Institutskaya in Blagoveshchensk.
Under the above circumstances, the appellate court has no grounds to satisfy the appeal of the Blagoveshchensk city administration and cancel the decision of the first instance court.
Guided by Articles 258, 268 - 271 of the Arbitration Procedural Code of the Russian Federation, the Sixth Arbitration Court of Appeal