housing code. Housing Code Housing Code Art 158 comments
1. The owner of premises in an apartment building shall be obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining the common property in an apartment building in proportion to his share in the common ownership of this property by paying a fee for the maintenance of the residential premises, contributions to overhaul. Payment of additional contributions intended to finance the costs of major repairs of common property in an apartment building is carried out by the owners of premises in an apartment building in the case provided for by Part 1.1 of this article.
1.1. In the event that the owners of premises in an apartment building, which form a capital repair fund on the account of a regional operator, make a decision to carry out a major overhaul of common property in an apartment building and at the same time it is impossible to use the funds of the capital repair fund to finance services and (or) work on capital repairs, provided for by the decision of the owners of premises in an apartment building, within the time limits specified by the decision, the owners of premises in this house have the right to take a decision at a general meeting of owners of premises in this house on an additional contribution to pay for the specified services and (or) works and the procedure for its payment. At the same time, the payment of such payments cannot begin earlier than three calendar months before the deadline for the performance of the specified services and (or) work provided for by the contract. The use of funds generated from additional contributions is carried out in the manner prescribed by the decision general meeting owners of premises in an apartment building.
2. Expenses for major repairs of common property in an apartment building are financed from the capital repairs fund and other sources not prohibited by law.
3. The obligation to pay the expenses for the overhaul of common property in an apartment building applies to all owners of premises in this house from the moment the right of ownership to premises in this house arises. Upon transfer of ownership of the premises in an apartment building, the obligation of the previous owner to pay the costs of major repairs of common property in the apartment building passes to the new owner, including the obligation not fulfilled by the previous owner to pay contributions for major repairs, with the exception of such an obligation not fulfilled Russian Federation, subject Russian Federation or the municipality that is the previous owner of the premises in the apartment building.
4. If the owners of premises in an apartment building at their general meeting did not decide on the choice of management method apartment building, the decision to establish the amount of payment for the maintenance of residential premises, such an amount is established by the body local government(in the subjects of the Russian Federation - the cities of federal significance Moscow, St. Petersburg and Sevastopol - by the state authority of the corresponding subject of the Russian Federation, unless the law of the corresponding subject of the Russian Federation establishes that these powers are exercised by local governments of intracity municipalities), taking into account guidelines approved federal agency executive power, carrying out the functions of developing and implementing public policy and legal regulation in the field of housing and communal services. The limit indices for changing the amount of payment for the maintenance of residential premises in these cases are determined by the local government (in the constituent entities of the Russian Federation - the cities of federal significance Moscow, St. that these powers are exercised by local governments of intracity municipalities) in accordance with the specified methodological recommendations.
Commentary on Art. 158 ZhK RF
1. The commented article links the provisions and with the provisions. The need for additional regulation is mainly related to the peculiarities of paying for the capital repairs of an apartment building, as well as the need to establish the legal consequences of the owners of premises in an apartment building not making a decision to establish the amount of payment for the maintenance and repair of a residential building. The provisions of this article apply to owners of both residential and non-residential living quarters in an apartment building. In addition, the commented article establishes a method for the participation of owners of premises in an apartment building in the costs of maintaining common property in such a house - paying a fee for the maintenance and repair of residential premises.
2. Part 1 of the commented Article 158, in contrast to Art. 210 of the Civil Code of the Russian Federation does not contain a provision on the possibility of the owner of the premises to distance himself from bearing the burden of maintaining the common property belonging to him in an apartment building if this is provided for by law or contract.
3. The norms of the Housing Code of the Russian Federation, which establish the obligations of the owners of premises to pay for the maintenance and repair of residential premises, do not say that the said fee must be paid by the owners of the premises only personally, and in the case provided for, they directly impose part of this obligation on the tenant (see .comment to part 4 of article 155 of the LCD). However, in case of violation of the obligation to pay this fee, the person responsible for the committed violation is the owner of the premises in the apartment building. Despite the fact that tenants of residential premises of state and municipal housing funds bear the costs of maintaining and repairing common property in an apartment building, the owner of municipal and state premises still continues to bear the burden of maintaining common property: the provisions of part 1 of the commented article apply to all owners and for all expenses related to the maintenance of common property.
4. To determine the amount of participation of the owner of the premises in the costs of maintaining common property in an apartment building, it is necessary to determine the share of a particular owner in the right of common ownership of this property, calculated in accordance with the norms (see commentary to this article).
5. The owners of premises in an apartment building are obliged to participate in the costs of maintaining common property in such a house (part 1 of article 39, part 1 of article 156 and part 1 of article 158 of the LC). Part 2 of the commented Article 158 of the Housing Code of the Russian Federation establishes the procedure for making a decision on the overhaul of an apartment building and on determining the amount of payment for this repair when managing an apartment building by a managing organization. All issues related to the organization of the overhaul of an apartment building are decided by the owners of the premises in the apartment building at their general meeting. Prior to the entry into force of the Housing Code of the Russian Federation, the issues of the order and scope of major repairs apartment buildings, as a rule, were single-handedly decided by local governments. This practice, in a camouflaged form, has survived to the present, although this is contrary to the norms of the LC RF (Art. and 158).
6. Relations on the organization and payment for the overhaul of apartment buildings are regulated by the commented article quite fully. The Housing Code of the Russian Federation does not provide for the possibility of regulating such relations by regulatory legal acts of state authorities of the constituent entities of the Russian Federation or local governments (see commentary to Articles 5, 12 - 14 of the Housing Code). The possibility of providing budget funds for the overhaul of apartment buildings to managing organizations, homeowners associations or housing cooperatives or other specialized consumer cooperatives is provided, as well as Art. Art. 14.1 and 16.1 of the Federal Law of October 6, 2003 N 131-FZ "On general principles organizations of local self-government in the Russian Federation”. From 2008 to the end of 2012, within the framework of the implementation of the Federal Law of July 21, 2007 N 185-FZ "On the Fund for Assistance to the Reform of the Housing and Communal Services", funding is provided from regional and local budgets(with the use of funds from the Housing and Utilities Reform Fund) overhaul of apartment buildings, in which methods of managing homeowners' associations, housing cooperatives and management organizations elected by owners at general meetings are being implemented. Wherein this law does not change the procedures for making decisions on major repairs provided for in the commented article.
7. According to part 2 of the commented article 158 of the LC of Russia, when managing an apartment building, the managing organization decides to carry out a major overhaul of an apartment building (indicating the start date, the required amount of work, etc.) and to pay the costs for it (the cost of materials, the procedure financing of repairs, terms of reimbursement of expenses) is adopted by the general meeting of owners of premises in an apartment building, taking into account proposals managing organization. With the direct management of the owners of premises in an apartment building, as well as in the management of a homeowners' association, a housing cooperative or a specialized consumer cooperative, while the management bodies of the partnership decide on the amount of payments and contributions to pay for major repairs for each owner of premises in an apartment building ().
8. The establishment of the amount of payment for major repairs by the local government is possible as an exception to the general rule in the event that the local government open competition on the selection of a managing organization for managing an apartment building if the owners of premises in an apartment building have not chosen a way to manage this house within a year from the date of entry into force of the Housing Code of the Russian Federation or if the decision made on choosing a way to manage this house has not been implemented (; art. 18 of the Introductory Law to the Housing Code of the Russian Federation). If necessary, a major overhaul may be one of the conditions for holding an open tender to select a managing organization. The procedure for setting the amount of the fee in this case is established in paragraph 34 of the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation of August 13, 2006 N 491.
9. When carrying out a major overhaul following the results of an open tender by a local government body to select a managing organization for managing an apartment building on the basis of the current Rules approved by Decree of the Government of the Russian Federation of February 6, 2006 N 75, obligations to carry out such repairs and pay for it should arise from the owners of the premises and the managing organization chosen by the local government on the basis of the concluded in, and not on the basis of legal act local government body or the protocol of such a competition. In addition, the amount of payment for capital repairs can be established by the local government in the case of direct management of the apartment building by the owners of the premises in the case specified in part 4 of the commented article.
10. Depending on the terms of the management agreement, the obligation to pay the costs of the overhaul of an apartment building may arise for the owners of premises in such a house either before the overhaul (advance payment) or immediately after it (installment payment), or with a combination of these methods. . For example, if a management contract for an apartment building is concluded for five years, and the capital repairs of the apartment building are planned in the middle of this period, then the capital repairs payment is paid in equal installments over 60 months. The Housing Code of the Russian Federation does not provide for mandatory prepayment of capital repairs as part of the payment for the maintenance and repair of residential premises in a particular apartment building.
International practice shows that the most effective mechanism for financing the overhaul and reconstruction of apartment buildings is the receipt of a loan by a homeowners association for these purposes with further repayment of this loan at the expense of payments from the owners of the premises or the adoption by the owners of the premises of a decision to transfer the loan amounts to the managing organization and the responsibility of the owners for repayment bank loan. At the same time, a significant part of payments to repay the loan can be compensated by reducing the payment for communal resources (primarily for thermal energy) as a result of resource saving measures as part of repairs or reconstruction.
11. The obligation established in part 3 of the commented article to pay the costs of major repairs of an apartment building applies to all new owners of premises in this house from the moment they acquire ownership of the premises. If the ownership of the premises in the apartment building has passed to the new owner, then the obligation of the previous owner to pay the costs of capital repairs of the apartment building passes to him. The commented norm stabilizes the relations on payment for the overhaul of an apartment building and reduces the risks of the overhaul contractor.
12. If major repairs have not been carried out or all obligations of the previous owner have been fulfilled at the time of alienation of the residential premises, then no obligations are transferred to the new owner. In this case, the obligation to pay for major repairs may arise for the first time for the new owner after the appropriate decision is made by the general meeting of owners of premises in an apartment building and the conclusion of the relevant agreements.
13. According to the general rule of the commented article, the amount of payment for the maintenance and repair of a residential building (see.
1. The owner of premises in an apartment building shall be obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining the common property in an apartment building in proportion to his share in the common ownership of this property by paying a fee for the maintenance and repair of the residential premises.
2. The decision of the general meeting of owners of premises in an apartment building on payment of expenses for the overhaul of an apartment building is made taking into account the proposals of the managing organization on the start date for the overhaul, the required scope of work, the cost of materials, the procedure for financing repairs, the timing of reimbursement of expenses and other proposals related to terms of the overhaul.
3. The obligation to pay the expenses for the overhaul of an apartment building shall apply to all owners of premises in this house from the moment the right of ownership to premises in this house arises. Upon transfer of ownership of the premises in an apartment building, the obligation of the previous owner to pay for the overhaul of the apartment building passes to the new owner.
4. If the owners of premises in an apartment building at their general meeting did not decide to establish the amount of payment for the maintenance and repair of residential premises, such an amount is established by the local government (in the constituent entities of the Russian Federation - the federal cities of Moscow and St. Petersburg - by the state authority corresponding subject of the Russian Federation).
Many people believe that if the meeting has not decided on the amount of the fee for the CRP, then the TARIFF set by the local authorities is taken, although it is intended for a completely different category of houses (which have not chosen a method of management)
In fact, the law does not indicate the application of TARIFFS, but the establishment of the SIZE
Size - a purely individualized value - for each house OWN
I recently received a letter - Help! I answer - describe the Resolution to me. In response: OK, I am sending the Resolution. I'm hammering mine - I don't even know what is written in the cap. It is necessary to get a grasp of it... It is very difficult to get a grasp of it... I have learned to penetrate the meaning of bureaucratic texts by describing them. I suggest you describe. - In response, Yes, I will describe it? - Patiently bending my own - as soon as you try to describe with your fingers, YOU WILL IMMEDIATELY SEE that it does not concern you ... There are about TARIFFS that are for the category (for a group) of houses ... Well, what can I say, the dialogue lasted 10 days. Describe - in no . Then - as often happens - disappearance. Understood - it's better to lose some 60 thousand than to spend 10 minutes to comprehend the meaning of what was written
Six months ago - there is a suspicion that it was read - the Deputy Director of the Department wrote a LETTER about the same
So spell it again
If the owners at their meeting HAVE NOT DECIDED on the AMOUNT OF PAYMENT
then the local self-government organization intervenes in the situation
HE HOLDS A COMPETITION
inframework bankruptcy proceedings FEE SIZE will be assigned
and sodocument of the Ministry of Construction and Housing and Public Utilities about this
MINISTRY OF CONSTRUCTION AND HOUSING AND UTILITIES
FARMS OF THE RUSSIAN FEDERATION
LETTER
(Extract)
Such an approach will fully take into account the structural elements of each apartment building, the presence and composition of intra-house engineering systems, Availability land plot on which the apartment building is located, landscaping and landscaping elements, as well as other facilities intended for the maintenance and operation of this apartment building, geodetic and climatic conditions of the location of the apartment building, which ultimately will properly affect the quality of service of the apartment building, according to legal the requirements of the owners of the premises of this house.
If local authorities establish the amount of payment for the maintenance and repair of residential premises to owners of premises based on groups of apartment buildings, such payment may not take into account the characteristics of a particular apartment building.
In the event that local authorities establish the amount of payment for the maintenance and repair of residential premises to owners of premises based on necessary services set in an amount not less than the minimum list, such a fee is more cost-effective to manage for each apartment building.
Based on the foregoing, and also in order to implement paragraph 35 of Rules N 491, we believe it is possible, when local governments establish the amount of payment for the maintenance and repair of common property to owners of premises of apartment buildings in accordance with part 4 of Article 158 of the HC RF, for the maintenance and repair of common property, to use the approach to establish such a fee based on from specific types of services and works established by the owners of the premises, taking into account the provisions of Rules N 491, the Minimum List and other regulatory legal acts that establish requirements for the maintenance of the common property of the owners of the premises (including the sanitary and epidemiological welfare of the population, technical regulation, consumer protection ).
Deputy Director of the Department
housing and communal services
1. The owner of premises in an apartment building shall be obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining the common property in an apartment building in proportion to his share in the common ownership of this property by paying a fee for the maintenance and repair of the residential premises, contributions to overhaul. Payment of additional contributions intended to finance the costs of major repairs of common property in an apartment building is carried out by the owners of premises in an apartment building in the case provided for by Part 1.1 of this article.
1.1. In the event that the owners of premises in an apartment building, which form a capital repair fund on the account of a regional operator, make a decision to carry out a major overhaul of common property in an apartment building and at the same time it is impossible to use the funds of the capital repair fund to finance services and (or) work on capital repairs, provided for by the decision of the owners of premises in an apartment building, within the time limits specified by the decision, the owners of premises in this house have the right to take a decision at a general meeting of owners of premises in this house on an additional contribution to pay for the specified services and (or) works and the procedure for its payment. At the same time, the payment of such payments cannot begin earlier than three calendar months before the deadline for the performance of the specified services and (or) work provided for by the contract. The use of funds generated from additional contributions is carried out in the manner established by the decision of the general meeting of owners of premises in an apartment building.
2. Expenses for major repairs of common property in an apartment building are financed from the capital repairs fund and other sources not prohibited by law.
3. The obligation to pay the expenses for the overhaul of an apartment building shall apply to all owners of premises in this building from the moment the right of ownership to premises in this building arises. Upon transfer of ownership of the premises in an apartment building, the obligation of the previous owner to pay the costs of capital repairs of the apartment building, including the obligation not fulfilled by the previous owner to pay contributions for capital repairs, passes to the new owner.
4. If the owners of premises in an apartment building at their general meeting did not decide to establish the amount of payment for the maintenance and repair of residential premises, such an amount is established by the local government (in the constituent entities of the Russian Federation - the federal cities of Moscow and St. Petersburg - by the state authority of the corresponding subject of the Russian Federation, unless the law of the corresponding subject of the Russian Federation establishes that these powers are exercised by local self-government bodies of intracity municipalities).
Art. 158 are new to federal housing law. Regarding these relations, there was no special regulation in the 1983 LCD and the Fundamentals.
1. Part 1 of the commented article specifies the obligations of the owners of residential premises, established in Art. 30 of the Code, in relation to the owners of premises in an apartment building and determines the structure of their expenses, establishes the criteria for determining these expenses, as well as the form of their payment.
- management of an apartment building (for management of apartment buildings, see Section VIII of the Code),
- maintenance, current and overhaul of common property in an apartment building (see Articles 39, 43; on the structure of payment for housing, see Article 154 of the Code).
The owner of the premises in an apartment building can be Russian or foreign citizen, a stateless person, entity, Russian Federation, subject of the Russian Federation or municipality. Such premises may belong to several persons on the basis of common ownership.
The owner of premises in an apartment building shall bear the burden of maintaining and repairing the premises belonging to him and maintaining the common property of the owners of premises in such a house, and the owner of a room in communal apartment- also the burden of maintaining the common property of the owners of rooms in such an apartment, unless otherwise provided federal law or an agreement (on the common property of the owners of premises in an apartment building, determination of shares in the ownership of such property, common property of the owners of rooms in a communal apartment and determination of shares in the ownership of such property, see Articles 36, 37, 41, 42 of the Code).
The share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of the premises in such a house, is determined by the share in the common ownership right to common property in such a house of the indicated owner.
The share of mandatory expenses for the maintenance of common property in a communal apartment, the burden of which is borne by the owner of a room in this apartment, is determined by the share in the right of common ownership of the common property in this apartment of the specified owner.
List of works related to the current repair of the common property of residential buildings and paid for by housing repair fees, in relation to multi-apartment buildings residential buildings, in which an association of owners has not been created, approved by Decree of the Government of the Russian Federation of July 30, 2004 N 392. See also the Rules for paying citizens for housing and utilities, approved by the said Decree.
2. Part 2 of Art. 158 of the Code assigns to the competence of the general meeting of owners of premises in an apartment building the decision to pay the costs of major repairs of this house and introduces the conditions for making the said decision, thereby supplementing the open list of issues within the competence of the management body of an apartment building. According to Art. 44 of the Code, the repair of common property in an apartment building falls within the competence of the general meeting of owners of premises in such a building. The general meeting of owners of premises in an apartment building is held in the manner prescribed by Art. Art. 45 - 48 of the Code.
According to part 7 of Art. 156 of the Code, in an apartment building in which a homeowners' association or a housing cooperative or other specialized consumer cooperative has not been established, the amount of payment for the maintenance and repair of the residential premises is determined taking into account the proposals of the managing organization and is established for a period of at least one year. The commented article specifies this rule in relation to the payment of capital repairs and contains an open list of issues related to the conditions for carrying out major repairs, which should be agreed with the managing organization and taken into account when making decisions on paying such expenses.
The managing organization, within the terms and on the conditions specified in the management agreement, ensures the maintenance and repair of residential buildings in accordance with the requirements for residential buildings established by technical regulations.
Mandatory conditions that are reflected in the management agreement for an apartment building, concluded between the managing organization and the owners of premises in an apartment building, the management bodies of a homeowners association or the management bodies of a housing cooperative or the management bodies of another specialized consumer cooperative, are, in particular, a list of services and works for maintenance and repair of common property in an apartment building, the procedure for changing such a list; the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises, as well as the procedure for making such a payment.
It seems that relations arising in connection with the direct management of an apartment building by the owners of the premises themselves are subject to Part 2 of Art. 158 of the Code should not be extended (the wording "taking into account the proposals of the managing organization" limits the application of this rule). On the direct management of an apartment building by the owners of premises in such a house, see Art. 164 of the Code.
Lists of types of work on current and major repairs, in particular, works carried out at the expense of funds intended for major repairs housing stock, contain the Rules and norms for the technical operation of the housing stock, approved by the Decree of the Gosstroy of the Russian Federation of September 27, 2003 N 170.
It should be noted that in order to create conditions for the management of multi-apartment buildings, local governments may provide management organizations, homeowners associations or housing cooperatives or other specialized consumer cooperatives budget resources for the renovation of apartment buildings.
3. The norms of part 3 of the commented article specify general rule, according to which the obligation to pay rent for housing and public utilities the owner of the dwelling arises from the moment the right of ownership to the dwelling arises. Major repair fee included integral part in the payment made by the owners of premises in an apartment building for the maintenance and repair of residential premises.
The decision of the general meeting of owners of premises in an apartment building, adopted in accordance with the procedure established by the Code, on issues within the competence of such a meeting, is binding on all owners of premises in an apartment building, incl. for those owners who did not participate in the voting. This rule also applies to the decision on the payment of expenses for the overhaul of an apartment building.
The Code establishes the conditions under which the owner of premises in an apartment building has the right to appeal to the court the decision of the general meeting of owners of premises in such a house. The right to appeal arises if:
- the decision was made by the general meeting of the owners of the premises in this house in violation of the requirements of the Code;
- the owner did not take part in this meeting or voted against the adoption of such a decision;
- such a decision violated the rights and legitimate interests this owner.
Part 3 of the commented article establishes the rule on succession in the obligation to pay the costs of capital repairs of an apartment building. The new owner, upon transfer of ownership of the premises in an apartment building, is obliged to participate in the costs of maintaining the common property in such a house, incl. for major repairs, in proportion to their share in the common ownership of this property.
This position follows logically from legal regime established by the Code for residential premises and shares in the right of common ownership of common property in multi-apartment buildings upon transfer of ownership of premises in such houses. At the same time, it is appropriate to recall that the share in the right of common ownership of the common property of the owner of the premises in an apartment building follows the fate of the ownership of the said premises; a share in the right of common ownership of common property in a communal apartment of the owner of a room in this apartment follows the fate of the ownership of the said room.
When acquiring ownership of premises in an apartment building, a share in the right of common ownership of common property in an apartment building passes to the acquirer.
Upon transfer of ownership of a premise in an apartment building, the share in the common ownership of the common property in this house of the new owner of such premises is equal to the share in the common ownership of the said common property of the previous owner of such premises. The terms of the contract, by which the transfer of ownership of the premises in an apartment building is not accompanied by the transfer of a share in the common ownership of the common property in such a house, are void.
4. The decision on the issue of establishing the amount of payment for the maintenance and repair of residential premises falls within the competence of the general meeting of owners of premises in an apartment building, the procedure for which is regulated by Art. Art. 45 - 48 of the Code.
As well as part 3 of Art. 156 (in relation to the choice of the method of managing an apartment building), part 4 of Art. 158 of the Code assigns to the competence of local governments, public authorities of Moscow and St. Petersburg the establishment of the amount of payment for the maintenance and repair of residential premises in the event that a decision on this issue has not been made by the owners of the premises.
Prior to the adoption of the Code, the relevant relations were regulated by Art. 15 of the Fundamentals, according to which the named bodies set prices for the maintenance, repair of housing, rental of residential premises in state and municipal housing stocks.
An open list of issues related to the competence of local governments in the field of housing relations is given in Art. 14 of the Code.