In the basements of many apartment buildings, transit pipelines for heating, hot water supply, and hot water supply are laid, ensuring the transfer of thermal energy to other objects. If a resource is taken from these pipes for the purpose of providing utilities owners of premises in a given apartment building, then such a scheme is usually called “loaded transit”

Contradictions in legislation

In accordance with the Civil Code of the Russian Federation (Articles 539 - 548), the Housing Code of the Russian Federation (Part 1, Article 36) and Decree of the Government of the Russian Federation No. 491 of August 13, 2006 (clause 1 and clause 2), sections of transit networks passing through basements residential buildings, and intended to provide utilities to several houses, do not meet the criteria for common property, i.e. not used for the purpose of providing public services to the owners of the premises of this house cannot be classified as the common property of a single apartment building. At the same time, in accordance with the norms of the Law “On Heat Supply” (clause 6 of Article 17), the owners of apartment building premises, who are at the same time shared owners of loaded transit, are obligated not to “impede the transfer of thermal energy to consumers through their heating networks..., and a ban has also been imposed to require consumers or heat supply organizations to reimburse the costs of operating such heating networks before establishing a tariff for services for the transmission of thermal energy through such heating networks.” Moreover, the law “On Heat Supply” implies that the owners of premises in apartment buildings, who are at the same time shared owners of loaded transit, are the owners of such heating networks. This contradiction in legislation leads to the fact that it is much more difficult for housing associations to build relationships with heat supply organizations than with Vodokanal divisions. Heating supply organizations are in no hurry to build partnerships, but in every possible way force the homeowners’ association to bear full responsibility for the maintenance of the transit pipeline. Heat supply organizations take their position, for example, CEO OJSC Kurgan Generating Company Sergeev I.V. and Director for Corporate and Legal Management A.S. Pribylev, interpreted as follows: “The heating network pipeline passing through the basement of the apartment building, from which heat is supplied to this house, is part of the common property, since such a pipeline meets all the criteria for property of this type: it is located within the walls of the apartment building, intended for maintenance more than one apartment. Indirect connection of other objects to this network does not affect its status as a common building network.” Thermal engineers have a similar attitude towards the repair and technical operation of expansion tanks.

Example of a conflict situation

In 2010, MOEK provided the homeowners association “V Ramenki” with an unreliable layout diagram of heating networks. In the act of delimiting the balance sheet ownership of heating networks and the operational responsibilities of the parties, the scheme for connecting a house to a central heating substation was presented as for the end consumer. The homeowners association, without understanding the real state of affairs, signed the act. Later it turned out that the pipeline was a transit one. As a result, the housing association had to incur additional costs for the maintenance and servicing of the transit pipeline in preparation for work during the heating season and during operation. In January 2014, the homeowners' association "V Ramenki" approached MOEK OJSC with a proposal to regulate the use of transit pipelines and an expansion tank, which MOEK uses to fulfill contractual obligations to neighboring houses. The HOA proposed to make additions to the heat supply agreement or to resolve the issue with an additional agreement. In its response, MOEK is trying to convince the HOA that the transit pipeline is the common property of the owners of the premises managed by the HOA “V Ramenki”. In the current situation, MOEK will most likely Once again will delay the preparation of documents confirming the readiness of the facility for the heating season. What will RSO come up with this time to put pressure on the HOA? Last year, in No. 11 2013, in her article “A comfortable city begins with a comfortable home,” the chairman of the HOA “In Ramenki” Emilia Khokhlova described the unlawful actions of MOEK as follows: “At the stage of pressure testing, we were refused to draw up an act. We asked to reflect in writing the comments on which the central heating system cannot be considered to have passed the test. In words, comments were made that were not related to the heating system of the building. In addition, arrears of payment were invented... As a warning for our obstinacy, a chemist was sent to check the quality of water in the system, who “cheated” it in accordance with the recommendations received. We did not agree with the results. The homeowners' association was forced to take water samples from these same risers for an independent examination, the results of which were completely different and met the requirements. But, nevertheless, the heat supply organization insisted on draining the system and refilling it. Having carried out an independent examination of the re-filling, we received documents indicating that this time the heating system of the house was filled with untreated water, drained after pressure testing the neighboring ones... They signed a certificate of readiness for the heating system for us only in early September... Signed after our appeals to the mayor's office, to the director of the RSO, to the prosecutor's office about unlawful actions against the HOA during the preparation and delivery of apartment buildings for the heating season. In our appeals-complaints we detail, with references to regulations, Housing Code of the Russian Federation, Civil Code of the Russian Federation, as well as at Art. 3 Federal Law “On the Protection of Rights legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”, reflected all our claims to the direct executors”

What to do?

There are hundreds of independent housing associations in the situation described by the chairman of the HOA “In Ramenki”. The chairmen receive threats through “third parties”: “We will not accept the house for winter if you do not sign the act of delimitation of balance sheet ownership.” But no matter what the heat supply organizations do, no matter what intrigues they invent - by signing an act of delimitation of the balance sheet ownership of transit heating networks along the wall of his house and thus taking full responsibility for the operation of the loaded transit, the chairman of the HOA will make a mistake. For the maintenance of someone else's property, any homeowner, based on the above provisions of the Housing Code of the Russian Federation, the Civil Code of the Russian Federation and Government Decree No. 491-PP, can file a lawsuit directly against the chairman of the HOA himself. For any homeowner, as well as for an unaffiliated judge of the Housing Code of the Russian Federation and the Civil Code of the Russian Federation, legislative acts have higher priority than the law “On Heat Supply”. Judicial practice confirms that in conditions of busy transit, the controversial transit pipeline is not part of the common property of the apartment building.

Arbitrage practice

Let's consider the decision of the Ninth Arbitration Court of Appeal No. 09AP-20166/2012-GK dated August 1, 2012 in case No. A40-94154/11-111-786. Classic LN LLC rented non-residential basement space from DIGM. The premises were on the balance sheet of the State Unitary Enterprise of Moscow DEZ of the Pokrovskoye-Streshnevo district. The rented premises were flooded. In accordance with the act, the flooding of the basement occurred as a result of an accident on the transit hot water pipeline; a ball valve that was not installed according to the standard burst. The Arbitration Court of the city of Moscow considered the claim of Classic LN LLC against the State Unitary Enterprise DEZ of the Pokrovskoye-Streshnevo district, OJSC MOEK for damages. The court decision partially satisfied the claim, and 518,000 rubles were recovered from MOEK OJSC. losses. The defendant tried to challenge the court's decision on appeal. However, the decision of the court of appeal states: The objections of the applicant regarding the lack of evidence that the disputed section of the pipeline belongs to JSC MOEK, including references to information from the Unified State Register, are subject to rejection, since they are refuted by the technical documentation submitted to the case, taking into account the Rules for the maintenance of common property in the MKD , approved by RF PP No. 491 dated 08/13/2006. Sections of transit heating networks passing through the basements of residential buildings and intended to supply thermal energy to several houses cannot be classified as the common property of a single apartment building. The arguments of OJSC "MOEK" that, from the terms of the contract for the supply of thermal energy, the boundary division of the operational responsibility of the parties between OJSC "MOEK" and the State Unitary Enterprise of Moscow DEZ of the Pokrovskoye-Streshnevo district are the external walls of houses, are subject to rejection, since the presented agreement is an act of division of balance sheet property, the agreement signed by the parties does not contain.

Saule BERKIMBAEVA

When the number was typed The chairman of the HOA “V Ramenki” reported that MOEK is still determined to consider an agreement on the maintenance of transit networks. “I resisted too much,” writes Emilia Khokhlova. However, the editors of the magazine will contact the Deputy Minister of Construction and Housing and Communal Services of Russia. A. Chibis for comments on transit pipelines, with the hope of an explanatory letter from the relevant ministry to all RNO.

Related materials:

Arbitration court Perm region

Ekaterininskaya, house 177, Perm, 614068, www.perm.arbitr.ru

In the name of the Russian Federation

SOLUTION

Arbitration Court of the Perm Territory composed of judge L.I. Lysanova,

when keeping the minutes by assistant judge O.A. Boyarshinova,

considered the case in open court

Limited Liability Company "Management Company "Krona" (OGRN 1065905054016, INN 5905246232)

to the defendant: limited liability company "Perm Grid Company" (OGRN 1075904022644, INN 5904176536)

third party: 1. Municipal entity of Perm represented by the administration of Perm

2. Department of Property Relations of the Perm City Administration

on imposing responsibilities for the maintenance of transit heating networks

When representatives participate in the court hearing:

from the plaintiff: Kalugin A.B., Vasenin M.N. by power of attorney dated 09/01/15

from the defendant: Suslova L.G. by power of attorney dated 05/06/15

from a third person: 1. did not appear, notified.

2. Luts Yu.A. by power of attorney dated 06/11/15

The plaintiff LLC Management Company "Krona" filed a claim in the arbitration court for the obligation of the defendant LLC "Perm Grid Company" to comply with the requirements of the law for the maintenance and operation of transit sections of heating networks passing through the basements of residential buildings No. 76, 78 st. Mira, Perm, in technically sound condition.

The defendant does not admit the claims on the grounds set out in the response to the claim. He indicated that transit heating networks located in the basements of the apartment building on St. Mira, 76, 78, do not belong to PSK LLC, they are ownerless, therefore there is no obligation to maintain and repair them. He considers the Department of Property Relations of the Administration of the City of Perm, as the authorized body responsible for identifying an ownerless network and appointing an operating organization, and the municipality of the city of Perm, as the owner of a section of the transit network passing through the basements of MKD No. 76, 78 st., to be appropriate defendants in the case. Mira.

Third party 1 sent a review, considers the claims to be justified, referring to the Rules for the maintenance of common property in apartment building No. 491, indicated that transit sections of heating networks passing through the basements of apartment buildings are not part of the common property, therefore the obligation to maintain them is technically sound condition is the responsibility of the operating organization, that is, PSK LLC. Transit sections of networks passing through residential buildings cannot be considered as individual separate real estate objects, but are an integral part of external networks owned by the defendant. The plaintiff did not have an obligation to maintain and operate transit sections of utility networks that do not belong to him.

Third party 2 supports the plaintiff's demands; in the response to the claim, he indicated that maintaining heating networks, heating points and other structures in operational and technically sound condition is the responsibility of the organization operating the heating networks. Since PSK LLC, being a resource supplying organization, operates heating networks that transit through the basements of disputed residential buildings, therefore, it is responsible for the maintenance, repair and operation of the networks.

Having studied the case materials and heard the arguments of the parties, the arbitration court established.

The plaintiff is the managing organization in relation to apartment buildings No. 76, 78, 80 Mira Street, Perm, which is confirmed by management agreements dated 10/12/09. and 11/23/09

Heat supply agreement between management company"Krona" and the resource supplying organization LLC "PSK" for the purpose of providing utility services, including to the owners of these houses, has not been concluded. An actual contractual relationship has developed between the parties for the supply of thermal energy to consumers of the disputed facilities, which is not disputed by the defendant.

05/28/10 The parties signed an act of delimitation of balance sheet ownership and operational responsibility with disagreements on the part of the plaintiff, who did not agree to be responsible for the condition of the transit heating network passing through the basement of buildings at the following addresses: st. Mira, 76, 78 and carry out maintenance of these sections of networks. Whereas the defendant proposed to establish the boundary of the operational responsibility of the energy supplying organization for the condition and maintenance of heating networks from the outer wall of the chamber TK-15-3, TK-18-3, to the outer wall of the buildings at the address: st. Mira, 76, 78, 80, excluding the transit heating network in the basement of buildings on Mira St., 76, 78. It was proposed to establish the limit of the subscriber's operational responsibility along the outer wall of the buildings on the street. Mira, 76 and 78.

The plaintiff indicated that through the technical floors (basements) of the MKD st. Mira, 76, 78 pass through transit heat networks through which the resource supply organization PSK LLC supplies utility resources for heat supply to other facilities. The transit heating network is in a pre-emergency state, which leads to flooding of basements and their destruction. To avoid occurrence emergency situations the management company is forced to actually maintain transit pipelines.

The defendant supplied heat resources to the plaintiff’s facilities and other consumers receiving thermal energy through transit pipelines passing through the basements of the disputed houses is not disputed.

The plaintiff explained that as a result of PSK LLC’s failure to fulfill its obligations for the operation and proper maintenance of transit sections of heating networks passing through the basement of the apartment building on St. Mira, 76, 78, heating networks are in disrepair, which is confirmed by act No. 2 of June 16, 2015. It is clear from the act that in the basement of house No. 78 st. In the world there was a breakthrough in the transit heating main before the accident in the house on 05.25.15. there was no hot water supply. Due to a breakthrough in the hot water supply network, the premises of owners and tenants were flooded.

In support of the stated requirements, the plaintiff refers to the fact that the pipelines located in transit through the basements are an integral part of the heating network in the area from the central heating point (thermal chamber) to the end consumers and are used by the defendant to supply resources, that is, they are used in production activities.

Referring to the failure of the owner of the disputed transit networks, PSK LLC, to fulfill its obligations in terms of their operation and proper maintenance, the plaintiff filed this claim in court.

The defendant considers the claims to be unfounded, since the arbitration court 01.12.15. in case No. A50-23222/15, the decision by which the claims of PSK LLC were satisfied in full, the Department of Property Relations of the city of Perm was entrusted with the obligation to register ownerless real estate along pipeline sections located in Perm, including Mira St., 76, 78.

The defendant also explained that the transit pipeline is not listed on the balance sheet (maintenance) of PSK LLC, the network is ownerless, and therefore is not obliged to bear the burden of maintaining the network. According to the contract of sale and purchase of movable and immovable property dated 12/18/08. the disputed utility networks were not transferred to the ownership of PSK LLC. The obligation of PSK LLC to bear the burden of maintaining an ownerless heating network arises on the basis of an order from the Department of Property Relations of the Perm City Administration. The order will be the basis for including in tariffs the costs of maintenance and servicing of an ownerless heating network for the next regulatory period.

Having assessed in accordance with Art. Based on the evidence presented by the parties and the arguments presented, the court considers the stated claims to be justified on the following grounds.

According to Part 1 of Art. the interested party has the right to apply to the arbitration court for the protection of his violated rights and legitimate interests.

In accordance with paragraph 1 of Art. civil rights and obligations arise from the grounds provided for by law and other legal acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, are due to general principles and meaning civil legislation give rise to civil rights and obligations.

The article provides for the awarding of duties in kind as one of the ways to protect civil rights.

Fulfillment of an obligation in kind means forcing the defendant to perform actions that he must perform by virtue of an existing civil obligation.

When determining the person obligated to maintain the controversial transit pipeline, it should be taken into account that the heating networks providing heat supply to apartment buildings are classified as socially significant objects.

By virtue of Art. 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 comply with the regime of its consumption stipulated in the agreement, ensure the safe operation of the energy networks under its control and the serviceability of the devices and equipment used by it related to with energy consumption.

Clause 1 of Art. it is stipulated that the energy supplying organization is obliged to supply energy to the subscriber through the connected network in the amount stipulated by the energy supply agreement and in compliance with the supply mode agreed upon by the parties.

According to paragraph 1 of Art. the quality of the supplied energy must comply with the requirements established by state standards and other mandatory rules or stipulated by the energy supply contract.

According to clause 2, 5-7 of the Rules for the maintenance of common property in an apartment building, approved. by Decree of the Government of the Russian Federation dated August 13, 2006 No. 491, the composition of common property includes, among other things, equipment (including boiler rooms, boiler rooms, elevator units and other engineering equipment); 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) metering devices for cold and hot water, the first shut-off and control valves on the branches of the intra-apartment wiring from the risers, as well as mechanical, electrical, sanitary and other equipment located on these networks; an intra-house heating system consisting of risers, heating elements, control and shut-off valves, collective (common house) heat energy metering devices, as well as other equipment located on these networks.

Clause 8 of Rules No. 461 provides that the outer boundary of the heat and water supply networks included in the common property, unless otherwise established by the legislation of the Russian Federation, is the outer boundary of the wall apartment building.

The Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 15, 2009 No. 14801/08 states that heating networks that provide not only an intra-house heating system, but also a system outside it cannot be included in the common property of citizens living in an apartment building.

Thus, current legislation does not impose the obligation to maintain and maintain transit networks (heating networks, hot water supply networks) on residents of multi-apartment residential buildings.

Based on the agreement for the purchase and sale of movable and immovable property dated December 18, 2008, concluded between the Municipal Unitary Enterprise "Permgorkommunteplo" and LLC "Perm Grid Company". the defendant took ownership of the property listed in Appendix No. 7 to this agreement (thermal route begins - thermal chambers TK-15-3, TK-15-3-1, TK-15-3-2, TK-18-3-1 , end – residential buildings on Mira street, 76, 78, 80, 82a (case sheet 53)

Certificate of state registration of rights dated September 25, 2009. it is confirmed that the defendant owns the heating route, purpose: utility network with a length of 278.30 running meters. (lit. 1), object address: Perm, Industrial district, beginning - thermal chambers TK-15-3, TK-15-3-1, TK-15-3-2, TK-18-3-1, end - residential buildings on the street. Mira, 76, 78, 80, 82a (ld. 68).

Agreement on the implementation of the terms of the competition for the sale of property related to socially significant objects dated July 16, 2010. It is also confirmed that the ownership of the above-mentioned utility networks was transferred to the defendant. By this agreement, the defendant assumed the obligation to properly maintain and use the property specified in the list of property, comply with the technical requirements for the operation of the property, and carry out routine and major repairs of the property.

Pipelines laid in transit through the premises of residential buildings and (or) social and cultural facilities are an integral part of the heating network in the area from the central heating point or thermal chamber to end consumers. Transit from sections of heating networks before and after transit is a complex composite object, due to their constructive and production-technical connectivity, integrity - performing a single function for the supply of thermal energy. This facility is designed to transfer energy from the energy source (separation point) to the consumer most distant from the source. The disputed areas are directly connected to each other. If they are separated, the pipeline ceases to exist as an object intended for transporting energy.

The obligation to maintain in good technological condition the heating networks used by PSK LLC for its production activities is provided for in Section 6 of the Rules for the Technical Operation of Power Installations dated April 2, 2003 No. 4358 (Order of the Ministry of Energy of the Russian Federation dated March 24, 2003 No. 115).

The defendant's reference to the decision of the arbitration court on 12/01/15. in case No. A50-23222/15, by which the Department of Property Relations of the city of Perm was entrusted with the obligation to register ownerless real estate on sections of pipelines located in Perm, including on Mira street, 76, 78, does not have legal significance in the dispute under consideration, since the plaintiff, by virtue of the above legislation, is not the person responsible for the maintenance of transit heating networks.

In accordance with Art. Housing Code of the Russian Federation and the terms of management contracts, the plaintiff assumed obligations to provide services and carry out work for the proper maintenance and repair of common property in the specified apartment buildings. According to clause 3.1 of the property management agreements: transit networks of electricity, heat, gas, and water supply are not the common property of the apartment building.

Since the heat supply organization has a corresponding obligation to maintain property is established by regulation and does not depend on the establishment of ownership rights (other legal rights) for sections of transit heating networks for this organization, the interests of LLC Management Company "Krona" can be protected in a lawsuit by filing a claim for obligation comply with legal requirements for the maintenance of transit sections of networks passing through the basements of the apartment building on the street. Mira, 76, 78, in technically sound condition.

That is, even if the disputed section of the network is ownerless, but is used by the heat supply organization to deliver resources to the consumer, then the responsibility for operation and incurring costs for the maintenance and upkeep of such section of the network lies with the resource supply organization, which, under certain conditions, is not deprived of the right to appeal to the regulatory body with documents confirming the relevant expenses for the purpose of their accounting and compensation in the subsequent regulation period (clause 4 of article 8 of the Federal Law of July 27, 2010 No. 190 of the Heat Supply Law).

According to paragraph 6 of Art. 15 of the Law on Heat Supply, in the event of identification of ownerless heating networks (heating networks that do not have an operating organization), the local government body of a settlement or urban district, before recognizing the ownership of these ownerless heating networks, within thirty days from the date of their identification, is obliged to determine the heating network organization, heating networks which are directly connected to the specified ownerless heating networks, or a single heat supply organization in the heat supply system, which includes the specified ownerless heating networks and which carries out the maintenance and servicing of the specified ownerless heating networks. The regulatory body is obliged to include the costs of maintenance and servicing of ownerless heating networks in the tariffs of the relevant organization for the next regulatory period.

Based on the interpretation of the specified norms of the Heat Supply Law, it follows that the organization operating an ownerless section of networks (networks that do not have an operating organization) is a heating network organization whose heating networks are connected to the specified ownerless networks.

In view of the above, since the case materials do not provide evidence that the disputed section of the transit heating networks is the property of the plaintiff, the obligation to bear the costs of maintaining and servicing such a section of the heating main lies with the defendant, as the heat supply organization providing heat supply to apartment building No. 76, 78 st. World, whose networks are directly connected to transit networks.

The poor condition of the transit heating network makes it impossible for citizens to receive utility resources of adequate quality, since the transit pipeline passing through the basements of houses No. 76, 78 st. Mira, are not common property, the stated requirements are subject to satisfaction.

In accordance with Art. , legal expenses incurred by the plaintiff to pay the state fee are borne by the defendant.

Guided by Art. Art. , - , Arbitration Procedural Code of the Russian Federation, Arbitration Court of the Perm Territory

DECIDED:

Satisfy the claims.

To oblige the limited liability company "Perm Grid Company" (OGRN 1075904022644, INN 5904176536) to comply with legal requirements for the maintenance of transit sections of utility heating networks passing through the basement of residential buildings No. 76, 78 st. Mira, Perm, in technically good condition.

To recover from the limited liability company "Perm Grid Company" (OGRN 1075904022644, INN 5904176536) in favor of the limited liability company "Management Company "Krona" (OGRN 1065905054016, INN 5905246232) in compensation of legal expenses for payment of the state fee of 6000 (six thousand) rub.

The decision can be appealed to the Seventeenth Arbitration Court of Appeal within a month from the date of its adoption (production in full) through the Arbitration Court of the Perm Territory.

Judge L.I. Lysanova

As a general rule, engineering communications located in an apartment building belong to the owners of the premises in the apartment building and relate either to common property or to intra-apartment equipment. However, there are cases when so-called transit networks run in the premises of the house, i.e. networks designed to serve other objects that are not part of the apartment building.

Within the meaning of the legislation, as well as based on established judicial practice, transit networks cannot be classified as common property. This circumstance was pointed out by the Supreme Court of the Russian Federation, resolving the issue of organizing general house accounting during the transit supply of communal resources to the house. The court came to the conclusion that transit networks that provide not only the intra-building system, but also the system outside it, cannot be included in the common property of citizens living in an apartment building. At the same time, general house metering devices during the transit supply of a utility resource must be installed in such a way as to take into account the volumes consumed only by this apartment building (decision dated December 3, 2012 No. AKPI12-1326). Similar conclusions were also made in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 15, 2009 No. 14801/08 in case No. A72-5489/06-22/219.

The boundary of balance sheet ownership and operational responsibility in relation to the specified transit networks is determined taking into account the fact that they are not subject to the provisions of clause 8 of the Rules for the maintenance of common property in an apartment building, approved. Decree of the Government of the Russian Federation dated August 13, 2006 No. 491 (hereinafter referred to as Rules No. 491). Since transit networks do not belong to common property, their external boundary cannot be established along the external boundary of the wall of an apartment building. This conclusion is contained, for example, in the resolution of the Federal Antimonopoly Service of the Volga District dated April 22, 2013 in case No. A65-19356/2012.

The boundary between transit networks and intra-house networks, as a rule, is determined by the point of insertion of intra-house networks into the transit pipeline (see, for example, the decision of the Supreme Court of the Russian Federation dated June 21, 2016 No. 308-KG16-6464 in case No. A25-444/2014, resolution Arbitration Court of the North-Western District dated 04/13/2015 No. F07-1654/2015 in case No. A42-3973/2014, resolution of the Federal Antimonopoly Service of the North-Western District dated 09/12/2013 in case No. A56-71015/2012).

>> The management authority has the right to make demands on the RSO in the event of an accident on transit networks due to a violation of obligations regarding their maintenance.

It should be noted that the fact that a utility resource is supplied to various buildings (structures) through the same transit network passing through these buildings does not in itself indicate that these buildings constitute a single piece of real estate. The Supreme Court of the Russian Federation drew attention to this circumstance in its ruling dated December 3, 2015 No. 310-ES15-15591 in case No. A14-6134/2014.

The presence of transit networks in MKD gives rise to numerous controversial situations, the participants of which are their owners, persons managing apartment buildings (hereinafter referred to as management companies, management companies), owners of premises in an apartment building, as well as other interested parties.

A brief overview of the legal positions of the courts formulated when considering these disputes can help participants in legal relations related to transit networks interact more effectively with each other.

Compensation for damage from improper condition of transit networks

The opinions of the courts about the person responsible for causing damage to the property of the owners of premises in apartment buildings as a result of the emergency condition of transit networks differ.

Option A. The requirements of an individual entrepreneur to the management authority for recovery of damage caused to the plaintiff’s apartment as a result of a break in the entrance of the apartment building of a transit pipeline and subsequent exposure to steam were considered. The court stated: “The very fact that the transit pipeline is being serviced by another organization, under the circumstances established in this case, does not exclude the management company from the list of persons against whom the plaintiff may make claims for damages. The management company is involved in relations with the persons responsible for its maintenance, uninterrupted, safe provision of thermal energy through this pipeline, which is an energy receiving device, including for the disputed residential building (Article 539 of the Civil Code of the Russian Federation). The plaintiff, in turn, has a contractual relationship with the defendant (management company)” (resolution of the Federal Antimonopoly Service of the West Siberian District dated October 29, 2013 in case No. A03-2893/2012). At the same time, the court noted that the management company is not deprived of the right to protect its violated rights in the manner prescribed by law. That is, the management authority has the right to present similar demands to the resource supplying organization or to the owner of the networks in connection with violation of obligations to maintain transit networks.

Option B. Other conclusions are also possible. The dispute arose in connection with damage caused to the tenant of non-residential premises in an apartment building as a result of flooding of the basement due to a non-standard installed and burst ball valve on the transit hot water supply pipeline. The courts indicated that sections of transit heating networks passing through the basements of residential buildings, which are intended to supply thermal energy to several houses, cannot be classified as the common property of a single apartment building. This transit pipeline, in accordance with Art. 36 of the Housing Code of the Russian Federation does not belong to the owners of premises in an apartment building. Consequently, the responsibility for its maintenance cannot be assigned to the owners of the premises or, depending on the chosen management method, to the management company. Supply hot water consumers, including through the controversial pipeline, are provided by the resource supply organization, which is confirmed by the contract for the supply of thermal energy. The resource supplying organization is entrusted with the burden of maintaining the controversial pipeline in good condition (Article 210 of the Civil Code of the Russian Federation). Guided by these grounds, the courts recovered from the resource supplying organization in favor of the tenant the amount of damage caused (resolution of the Federal Antimonopoly Service of the Moscow District dated December 10, 2012 in case No. A40-94154/11-111-786).

Similar conclusions were made in another case. The plaintiff's non-residential semi-basement premises were flooded as a result of a break in the transit heating main in the basement of the apartment building. The court came to the conclusion that responsibility for the proper condition of the transit pipeline in accordance with the Rules for the technical operation of thermal power plants, approved. by order of the Ministry of Energy of Russia dated March 24, 2003 No. 115, the resource supplying organization is responsible and it is the organization that is obliged to compensate for the damage caused to the plaintiff as a result of the improper condition of this pipeline (resolution of the Arbitration Court of the Volga District dated April 15, 2016 in case No. A65-10630/2015).

In the Volga-Vyatka District, the courts satisfied the claims of the owner of the premises in an apartment building to the resource supply organization and recovered damage caused by a break in the transit pipeline. It was stated that by virtue of clause 3 of Art. 8 and paragraph 4 of Art. 15 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply”, the costs of ensuring the transfer of thermal energy and (or) coolant through heating networks are included in the tariff for thermal energy sold by the heat supply organization to thermal energy consumers. Thus, the defendant, using the heating network to provide services for the supply of thermal energy for its counterparties, must be held liable for damage caused to the plaintiff as a result of an accident on a section of the transit network (resolution of the Arbitration Court of the Volga-Vyatka District dated 03.03.2016 in case No. A79- 2216/2015).

Option C. It should be noted that if damage to the property of the owners of premises in an apartment building is caused as a result of a break on a branch of a transit pipeline passing through an apartment building, to which the intra-house network of this apartment building is connected, the courts will recover the cost of this damage from the management authority, and not from the resource supply organization responsible for operation of the transit pipeline. Thus, in case No. A43-23446/2010, the courts, on the basis of photographs and an inspection report, established that the pipeline rupture occurred not on the transit heating main itself, but on a branch, i.e. in the area between the point of insertion into the central heating main and the first flange valves on the circulation pipeline. In connection with this circumstance, the courts concluded that the person obligated to compensate the plaintiff for the damage caused by this breakthrough is the management company, and not the resource supplying organization.

• Law on “direct contracts” with resource supply organizations - 2016

Challenging the instructions of regulatory authorities on the operation of transit networks

The courts recognize as legitimate the actions of regulatory authorities to hold the management company accountable for the improper condition of common property in apartment buildings if it is caused by a violation of the requirements for the operation of transit networks.

>> The guilt of other persons in causing damage does not relieve the MA of the obligation to eliminate the causes and consequences of the incident on transit networks.

Thus, in the framework of case No. A26-8678/2014, the HOA’s application to invalidate the order of the State Housing Inspectorate (hereinafter referred to as the GZHI) was considered. Based on a complaint from a resident of an apartment building about flooding of the transit heating main in the basement, GZHI conducted an unscheduled on-site inspection. During the inspection, it was revealed that sewage flows into the basement of the apartment building from the channel of the transit (engineering) main, the basement is flooded, and there is a sewer smell in the basement. Based on the results of the inspection, the GZHI issued an order to the HOA to conduct an investigation of the causes of flooding in the basement and take the necessary measures to eliminate them, perform work on drying, cleaning and sanitizing the basement.

The Arbitration Court of the Republic of Karelia satisfied these requirements. At the same time, the court proceeded, among other things, from the fact that the source of flooding was a transit heating main, not related to the general property of the apartment building.

The Thirteenth Court of Appeal, and then the Arbitration Court of the North-Western District, overturned this decision and refused to satisfy the claims. The courts indicated that the HOA, being the person responsible for ensuring the proper maintenance of the common property of the apartment building, creating and maintaining favorable and safe conditions for citizens to live in this house, is obliged to take actions aimed at fulfilling these duties and complying with these conditions. The presence of the guilt of other persons in the flooding of the basement of the apartment building does not exclude the applicant’s obligation to carry out appropriate measures.

Based on the fact that the subject of the inspection carried out by the State Housing Inspectorate was the condition of the common property of the apartment building, and the cause of the flooding and the persons responsible for causing damage to the common property of the apartment building needed to be additionally established, the courts came to the conclusion that the requirements of the contested order were justified.

Payment for losses in transit networks

The courts recognize that presenting for payment to the management authority the volumes of losses of utility resources that occurred on transit networks in apartment buildings is contrary to the law.

Thus, the HOA, in case No. A50-21364/2013, filed a claim against the heat supply organization for the recovery of unjust enrichment in the amount of the cost of losses incurred on the transit pipeline. The courts found that the plaintiff's metering device was not located on the external wall of the apartment building managed by the plaintiff, but was shifted towards the network section running in the basement of the house. At the same time, the section of the network from the wall of the house to the plaintiff’s metering device is transit - other objects are also powered from it. The parties do not dispute this, therefore, this site is not part of the common property of the apartment building.

As established by judicial acts in another case (No. A50-8469/2013), there is no information about the owner of the specified transit pipeline and the obligation to bear the costs of maintaining and servicing such a section of the heating main lies with the defendant - the heat supply organization that supplies heat to the apartment building and whose networks are directly connected to transit networks.

The courts came to the conclusion that the current legislation does not provide for the obligation of the HOA to pay for heat losses on transit heating networks that do not belong to the partnership. Consequently, the cost of heat losses that occurred in the specified section of the networks is unjust enrichment for the defendant at the expense of the HOA.

The courts came to similar conclusions when considering the dispute in case No. A50-6020/2012 (resolution of the Seventeenth Arbitration Court of Appeal dated October 19, 2012 No. 17AP-9459/2012-GK).

• Is it possible to charge fees for servicing transit networks passing through the apartment complex?

Collection of fees from the owner of transit networks for the use of common property in apartment buildings

In practice, the question arises whether it is possible to demand from an organization that owns a transit network passing through an apartment building a fee for the use of premises related to common property through which these networks pass. By this issue There are various judicial practices.

Option A. The courts denied the HOA's request to recover unjust enrichment from the owner of the transit heating main in the amount of fees for the use of the technical floor through which this heating main runs, and the obligation to conclude a lease agreement for this premises.

When substantiating the claims, the partnership referred to the fact that the disputed section of the heating main is transit for apartment buildings managed by the HOA, the defendant does not pay rent for the use of the premises, and the partnership, without any legal grounds, is forced to carry out measures for a long time to maintain this facility and bear risks in the event of force majeure situations.

In refusing to satisfy these demands, the courts proceeded from the following.

With regard to the requirement for the obligation to conclude a lease agreement, it was stated that, within the meaning of paragraph 1 of Art. 421 and paragraph 4 of Art. 445 of the Civil Code of the Russian Federation, only a person for whom the conclusion of an agreement is obligatory by law or is conditioned by a voluntarily assumed obligation can be forced to conclude an agreement by a court decision. The requirement to compel the conclusion of an agreement can be satisfied in court if the party for whom the conclusion of the agreement is obligatory evades fulfilling such an obligation. However, the plaintiff did not prove, with reference to the rules of law, the defendant’s obligation to enter into the required lease agreement.

With regard to the claim for unjust enrichment, the court indicated that the plaintiff had to prove the simultaneous presence of the following conditions:

• the fact that the plaintiff bears the costs of maintaining the heating main;
• the fact and period of use by the defendant of the premises of the common property of the owners of the apartment building;
• the presence or absence of legal grounds for the defendant to use the property that is in the possession of the plaintiff;
• the amount of unjust enrichment of the defendant.

>> The claim for reimbursement of expenses must be supported by documentation.

However, no evidence was presented to reliably confirm that the plaintiff incurred costs for maintaining the defendant’s networks, or evidence of the defendant’s use of common property premises. In addition, there is also no evidence that the MKD construction project did not provide for the placement of transit heating networks in the technical underground of the house (resolution of the Arbitration Court of the West Siberian District dated December 11, 2015 in case No. A45-3899/2015.

In another case, the court refused to satisfy similar demands for recovery from the heat supply organization of lost profits in the amount of rent for the use of the basement through which the transit heating main runs. The court justified its decision as follows. In accordance with clause 5 of Order No. 197 of the Ministry of Construction of Russia dated August 17, 1992 “On standard rules for utility networks,” basements are required to contain boiler rooms, pumping water supply and sewerage systems, ventilation and air conditioning chambers, control units and other premises for installation and management of engineering and technical equipment buildings and are not intended for rental, since there is a possibility of their flooding (decision of the Arbitration Court of the Sverdlovsk Region dated July 4, 2016 in case No. A60-24665/2015).

Option B. A positive practice of collecting fees for the use of common property exists in cases where such networks are placed without the consent of the owners of the premises, while their placement is not provided for in the technical documentation for the house, or when laying these networks technical requirements were violated.

For example, in the framework of case No. A45-16484/2013, the requirements of the HOA were considered regarding the obligation of the person who placed the electrical cable on the apartment building to restore the integrity of the elements of the façade of the apartment building after dismantling the cable, and to recover unjust enrichment for the use of the common property of the owners of premises in the apartment building. The courts satisfied the claims in connection with the proof of the fact that the defendant used the common property of the apartment building without the consent of the owners and the validity of the amount of unjust enrichment stated for collection, established by the expert opinion.

At the same time, it was noted that the HOA, as the legal representative of the owners of premises in an apartment building, has the right to demand the prevention or termination of actions of third parties that complicate the exercise of the rights of ownership, use and, within the limits established by law, the disposal of the owners of premises with common property in an apartment building or interfere with this, incl. hours and for the period preceding its creation.

Recovery of costs for their repair from the owner of transit networks

The courts may refuse to recover from the resource supplying organization the costs of repairing the transit heating main.

1. The courts have established that the defendant owns the section of heat supply networks from the central heating point to the apartment building. At the same time, these networks do not include the section that transits through the basement of the apartment building.

The plaintiff presented local estimates for replacing the transit highway. According to them, the total length of pipelines of transit networks located in the basement of the disputed house significantly exceeds the length of utility networks indicated in the certificate of state registration of the defendant’s ownership of utility networks.

Since the defendant does not have ownership rights to transit networks, therefore, there is no burden of maintenance and responsibility for the maintenance and operation of these networks by virtue of the provisions of Art. 210 Civil Code of the Russian Federation. In addition, in the energy supply agreement between the plaintiff and the defendant, the boundary of the balance sheet ownership and operational responsibility of the defendant from the central heating substation to the border of the apartment building, excluding transit heating networks in the basements, was agreed upon (resolution of the Seventeenth Arbitration Court of Appeal dated January 18, 2012 No. 17AP-13293/2011-GK in case No. A50-13531/2011).

2. In the framework of case No. A60-24665/2015, the initial demands of the heat supply organization to the HOA for the collection of debt for supplied thermal energy and the counter-claims of the HOA for the recovery of rent for the use of the basement in which the transit heating network runs, as well as the costs of its maintenance, were considered. The court refused to satisfy the counterclaims. In terms of demands for recovery of expenses for maintaining the transit network, the refusal is motivated as follows.

The plaintiff did not agree with the defendant on the list and cost of work and did not notify the defendant about the work being carried out on the disputed heating main. There is no consent from the defendant to carry out emergency restoration work on the heating network. The defendant did not participate in the acceptance of the work performed. Also, the plaintiff did not approach the defendant with a proposal to conclude an agreement for the maintenance of the disputed heating main.

During the period of validity of the heat supply agreement, no accidents or breakthroughs were recorded in the transit section. Moreover, in the event of emergency situations, the plaintiff could not independently, without notifying the defendant, eliminate their consequences, since this was due to the need to regulate the supply of coolant to the source of thermal energy from which the MKD is powered.

From the documents presented as evidence of expenses, it follows that the plaintiff was responsible for the maintenance and operation of intra-house systems that are part of the common property of the apartment building, and not for the repair and maintenance of the transit pipeline. There is no confirmation that the disputed work was performed directly at the site owned by the defendant.

>> RSO uses transit networks in production activities and is obliged to maintain this property.

Obligation of the resource supplying organization to repair transit networks

Option A. The most widespread judicial practice is the obligation of the heat supply organization, to whose networks ownerless transit networks passing through the apartment buildings are connected, to carry out their proper maintenance and repair. In this case, the courts rely on the legal position contained in the decision of the Supreme Arbitration Court of the Russian Federation dated October 28, 2013 No. VAS-10864/13. According to this position, the costs of operating the electrical network (losses) are to be borne by the person operating the networks, i.e., the network organization, since it carries out its professional activities using such networks and receives benefits from their operation.

Thus, in the framework of case No. A50-9610/2014, the requirements of the management authority to the heat supply organization regarding the obligation to replace the emergency hot water supply pipeline in the basement of an apartment building were considered. In satisfying the requirements, the courts proceeded from the following.

The defendant uses transit hot water supply networks that run through the basement of the apartment building and are not common property when carrying out production activities. Consequently, the defendant is obliged to maintain the transit networks it uses.

If local government bodies, in accordance with Part 6 of Art. 15 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply” does not define a heating network (single heat supply) organization that carries out the maintenance and servicing of ownerless networks, taking into account the provisions of Part 4 of Art. 8, part 11 art. 15 of this law, the costs of maintaining and repairing ownerless heating networks, as well as losses in them, must be paid by the persons (heating networks, heat supply organizations) operating them for the purpose of carrying out their regulated activities in the field of heat supply. The costs of maintenance, repair, and operation of such heating networks are taken into account when setting tariffs for these organizations.

In another similar case No. A50-20118/2013, the courts rejected the arguments of the heat supply organization that, satisfying the requirements for this case actually entails recognition of the defendant as the owner of the disputed transit networks. The courts indicated that the claims were filed in accordance with Art. 12 of the Civil Code of the Russian Federation on the award of duties in kind. Therefore, in the framework of the case under consideration, it was concluded that there was a corresponding obligation on the defendant’s side to maintain the property, and not that the defendant’s right of ownership to sections of transit networks was established. Moreover, if the defendant considers another person to be the owner of the disputed network sections, he has the right to present relevant demands to this person in court, including for reimbursement of costs associated with the fulfillment of obligations under the heat supply contract.

Similar conclusions are contained in judicial acts in cases No. A34-5649/2013, A50-24177/2014, A50-12906/2014, A50-20118/2013, A50-9610/2014, A34-5649/2013, A50-18548/ 2012, A50-21466/2012, A50-21466/2012, A50-16515/2014, A50-19399/2014, A50-14000/2013, A50-8469/2013, A50-21983/2013.

Option B. At the same time, there is also negative judicial practice. Thus, when considering case No. A31-3266/2014, the courts refused to satisfy the requirements of the UO to the heat supply and heating network organizations to carry out the withdrawal of the transit heating network from the MKD in an above-ground version through the existing technological opening above the pit, which serves for independent exit to the outside from the heating point, and on the defendant’s obligation to carry out work on waterproofing the exit of the transit network from the apartment building and thermal insulation of the transit section of the network in the basement.

The courts found that the exit of the transit network from the apartment building was not sealed, as a result of which the pit located in the basement of the house was periodically flooded with water. According to the expert's conclusion, this is due to the high groundwater level, which periodically rises or falls depending on the season.

At the same time, the courts indicated that no violations of any building codes and regulations were established during the construction of the house and the transit heating network, and no evidence to the contrary was presented. The plaintiff's demands are aimed at reconstructing the heating network and the obligation to carry out major repairs of the foundation of the house - the common property of the owners of residential and non-residential premises of the apartment building. Responsibility for organizing and conducting overhaul of common property in an apartment building, in accordance with the requirements of the Housing Code of the Russian Federation, is assigned to the owners of the premises of this house, and if a management authority is elected, also to this organization. In this case, it is the plaintiff. In this regard, the courts came to the conclusion that there was no evidence of the defendant’s failure to fulfill obligations to ensure the proper technical condition of heating equipment and the heating network.

Relocation of transit networks outside the MKD

When resolving disputes about the removal of transit networks outside the apartment building, the answer to the question of whether the requirements of the law were met during their laying, including technical requirements, as well as the requirement to obtain the consent of the owners of premises in the apartment building for the laying of transit networks networks.

Option A. The courts in case No. A40-48795/12 satisfied the HOA's demands to the gas supply organization for a ban on using the common property of the apartment building to place a gas pipe, and for the obligation to dismantle it from the facade of the apartment building.

The court found that the MKD belongs to the monuments of history and culture. At the same time, the gas pipe does not serve any functional purpose for the apartment building - it is transit, intended for gasification of nearby cafes and buildings. The placement of this pipe violates clause 3 of Art. 33 of the Moscow Law of July 14, 2000 No. 26 “On the protection and use of immovable historical and cultural monuments”, according to which the laying of utilities on immovable historical and cultural monuments that exceed their functional needs is prohibited. The court also took into account that, according to the expert opinion, the low-pressure gas pipe laid along the façade of the apartment building can and should be dismantled and moved underground, while ensuring gas supply to the relevant structures.

Option B. In case No. A56-78694/2012, the courts found unfounded the demands of a housing construction cooperative to a resource supply organization to remove obstacles to the use of the basement of an apartment building by dismantling the transit pipeline laid there.

The courts gave the following justification. The transit pipeline was laid after the creation of the cooperative, i.e. the laying of the pipeline in the basement of the apartment building could not have been carried out without its knowledge. The controversial pipeline was placed in the basement of the apartment building legally in accordance with the technical requirements that were in force during the period of its creation. This pipeline ensures the life of several buildings, including those for social purposes; its dismantling could significantly disrupt the interests of an unlimited number of people. At the same time, the plaintiff did not justify the possibility of laying the heating main in another way, bypassing the basement of the apartment building.

Recognition of transit networks as common property

The courts find unfounded the demands to recognize transit networks passing through an apartment building as the common property of the owners of premises in this apartment building.

Thus, the courts of appeal and cassation in case No. A65-19356/2012 refused to satisfy the specified requirements presented by the owner of the transit network to the HOA. The courts indicated that the outer boundary of the wall of an apartment building cannot be the boundary of transit heating networks, since, by virtue of clause 8 of Rules No. 491, it is the boundary only of the heat and water supply networks that are part of the common property of this apartment building. Thus, the courts came to the conclusion that the plaintiff does not have the right to force the defendant to accept the said heating main into the ownership of the owners of apartments and non-residential premises of an apartment building, since it does not meet the criteria of common property.

Settlement of disagreements regarding contracts for the supply of utilities

In case of consideration of a dispute regarding the settlement of disagreements under contracts for the supply of utility resources, as well as disputes regarding amendments to these contracts (recognition individual conditions contracts are invalid), the courts proceed from the fact that transit networks cannot be included within the boundaries of the balance sheet ownership and operational responsibility of the management company.

1. Judicial acts in case No. A25-1790/2013 imposed an obligation on the resource supplying organization to conclude a contract for cold water supply and sanitation on the terms established by the court. Among other things, the court set out one of the controversial terms of the contract as follows: “The boundary of the operational responsibility of the water supply and sewerage networks is the outer boundary of the wall of an apartment building, and in the presence of transit pipelines, the point of insertion into the transit pipeline.”

2. In the framework of case No. A50-16025/2012, the requirements of the HOA to the heat supply organization for the obligation to make changes to the contract for the supply of thermal energy in network water were considered and satisfied. It was proposed to determine the boundary of balance sheet ownership and operational responsibility of the parties at the point of connection of collective metering devices with transit heating networks passing through the apartment building.

The courts, with reference to the legal position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 15, 2009 No. 14801/08, indicated that networks that provide not only an intra-house heating system, but also a system outside it cannot be included in the common property of citizens, living in the MKD. Concluding contracts for the supply of thermal energy to apartment house, The HOA acts in property transactions not in its own interests, but in the interests of the members of the partnership. The corresponding obligations of the HOA to organizations directly providing services (performing work) cannot be greater than in the case of these organizations concluding direct contracts with residents who are members of the HOA.

The courts rejected the defendant's argument about agreeing on the boundaries of operational responsibility when concluding a heat supply contract, indicating that the terms of the contract should not contradict the rules obligatory for the parties, established by law, and other legal acts (mandatory norms).

3. It is necessary to pay attention to the position of the courts, according to which the presence in the premises of an apartment building of a transit network intended for the supply of communal resources to other objects is not a basis for preventing the owners from using this premises. For example, the resolution of the Federal Antimonopoly Service of the North-Western District dated 06.06.2011 in case No. A56-33575/2010 states that by prohibiting owners from using premises where transit pipelines pass, a burden is imposed on the common property of the owners of premises in an apartment building. In this regard, the court invalidated the corresponding provision of the heat supply contract.

• Disclosure of information by organizations providing services in the field of heat supply

Obligation to register transit networks as ownerless

For cases in which the owner of transit networks is unknown, there is judicial practice on claims of resource supplying organizations to authorized local government bodies to impose the obligation to contact territorial body Rosreestr with an application to register such networks as ownerless real estate.

As a rule, resource supplying organizations make these requirements when they are entrusted with the responsibility for maintaining these networks, but they cannot include these costs in their tariff due to the lack of ownerless status of the networks.

Option A. Judicial acts in case No. A50-23222/2015 satisfied the requirements of the heat supply organization for the management of property relations of the municipality.

Courts with reference to Art. 225 of the Civil Code of the Russian Federation and municipal regulations came to the conclusion that the local government body is the only body that has the right to submit an application to register property as ownerless. Therefore, he is obliged to take action to submit such an application by virtue of the powers vested in him by law. In this case, the obligation to determine a heating network organization or a single heat supply organization in the heat supply system, which maintains and maintains ownerless heating networks, arises with the local government from the moment ownerless heating networks are identified.

The courts found that the plaintiff had registered ownership of the external networks. The courts rejected the defendant's argument that pipelines laid in transit through the premises (basements) of residential buildings and sections of external heating networks are a complex thing in accordance with Art. 134 of the Civil Code of the Russian Federation and belong to the plaintiff by force of law. Noting that what is given in Art. 134 of the Civil Code of the Russian Federation, the concept of a complex thing is relative and conditional, depending on the will of the parties; the legislator provided the parties to the transaction with the opportunity to sell individual objects included in the complex thing.

The cassation court found unfounded the conclusion of the appellate court about the possibility of including the costs of maintenance and servicing of ownerless heating networks in the tariffs of the relevant organization, regardless of their registration as ownerless property by the registering authority, as well as the plaintiff’s lack of legal interest in recording the disputed networks as ownerless and, accordingly, violation of the rights and interests of the plaintiff by the defendant. The court indicated that the determination by the local government of a network organization, which is entrusted with the responsibility for maintaining the identified ownerless water supply, sewer, and heating networks, is a necessary condition for including the costs of maintaining and servicing ownerless facilities in the tariffs of the relevant organization. The disputed networks do not have the status of ownerless property, and the plaintiff does not have the status of an organization determined by the local government as obligated to maintain and maintain ownerless networks in accordance with paragraph 6 of Art. 15 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply” and paragraphs. 5, 6 tbsp. 8 of the Federal Law of December 7, 2011 No. 416-FZ “On Water Supply and Sanitation” does not give the plaintiff the opportunity to include the costs of maintaining networks, which he is forced to bear due to the imposition of such an obligation on him by judicial acts in another case, in tariffs in accordance with provisions of the above standards.

The court noted that in this case, the obligation to maintain the disputed sections of networks was assigned to the plaintiff by judicial acts at the request of the management of the relevant apartment buildings, and not by the local government in the manner established by the above rules. The presence of positive judicial practice to force owners (proprietors) of external networks to maintain and repair networks laid in transit through residential buildings, as the court of first instance correctly pointed out, is not a reason for the local government not to register these networks as ownerless with the registration authority (resolution of the Arbitration Court of the Ural District dated 06.06.2016 No. F09-4741/16).

Similar conclusions were made in judicial acts in cases No. A50-5612/2015, A50-7410/2013.

Option B. It should be noted that submitting demands to a person who does not have the authority to carry out actions related to the registration of ownerless objects is grounds for refusing to satisfy them.

For example, in case No. A50-21704/2014, the heat supply organization’s demands for recognition of the decision of the municipal administration on the inexpediency of carrying out the procedure for accepting sections of transit networks, as well as the obligation to eliminate the violation of the rights and interests of the applicant, were considered and left without satisfaction. At the same time, the courts indicated that from the municipal regulatory legal act regulating the procedure for registering ownerless objects, it follows that the municipal administration does not have the authority to decide the issue of the advisability or inexpediency of collecting documents for registering an ownerless object for the purpose of registration with the municipal ownership of communal infrastructure facilities.

Option C. If the courts determine that the disputed section of the network is not transit, they will refuse to satisfy the requirements for the obligation to take steps to register it as ownerless.

For example, the Arbitration Court of the Far Eastern District made the following conclusions.

It was established that the disputed section of the heating network is part of the structures that provide heat supply exclusively to the apartment building, which is under the control of the plaintiff. It cannot be recognized as an ownerless thing, since it is not transit.

Since the relationship between the parties is regulated by the heat supply agreement, the absence of the owner of the disputed networks is not an absolute basis for the court to recognize this property as ownerless and force the local government body to take actions to register it. At the same time, from the evidence presented it followed that the disputed area was the operational responsibility of the plaintiff (resolution of the Arbitration Court of the Far Eastern District dated July 5, 2016 No. F03-2785/2016 in case No. A73-14697/2015).

• Maintenance of utility networks: distribution of responsibilities and duties

conclusions

Based on the legal positions formulated by the courts, the following features can be identified: legal regulation relations related to the functioning of transit networks in MKD.

1. By transit we mean networks that provide communal resources not only to the intra-house system of the corresponding apartment building, but also to the system outside it.

These transit networks cannot be included in the common property. The boundary of balance sheet ownership and operational responsibility in the presence of transit networks in the apartment building is determined by the point of insertion of intra-house networks into the transit pipeline.

The management authority is not obliged to pay for losses of utility resources that occur in transit networks. If in the contract for the supply of communal resources other conditions are agreed on the boundaries and (or) volumes of supply of the communal resource, these conditions must be declared invalid.

2. If the owner of transit networks is not determined, the responsibility and costs for their maintenance are borne by the resource supplying organization that operates these networks for the purpose of supplying communal resources to the apartment building. Moreover, if transit networks are not registered as ownerless, the resource supplying organization has the right to go to court with demands to oblige the authorized person to take the necessary actions to include the costs of maintaining such networks and paying for losses incurred in them in the tariff used by this resource supplying organization.

3. The management authority, on behalf of the owners of premises in the apartment building, does not have the right to demand the removal of transit networks outside the house and (or) demand payment for the use of common property in which transit networks are located. Exception: these networks were laid in violation of the law, for example, in violation of technical requirements, in the absence of the necessary approvals, including with the owners of premises in the apartment building, etc.

4. In order to recover from the resource supplying organization the costs of maintaining and repairing transit networks, the management entity must prove:

• the need to bear such costs;
• the fact of bearing these costs for the repair and maintenance of transit networks.

5. If, as a result of the emergency condition of transit networks, the owners of premises in the apartment building suffer damage, they can submit claims for damages to both the management company and the resource supplying organization. If the management company compensates the owners for such damage, it has the right to present similar demands to the resource supplying organization. Moreover, if damage to common property was caused as a result of the improper condition of transit networks, the MA is obliged to restore it. And the management authority has the right to demand from the resource supplying organization compensation for losses caused in connection with failure to fulfill the obligation to maintain the transit pipeline.

Does the utility service provider have the right to demand payment for heating from the owner of the premises if there are no radiators in it?

In practice, utility service providers often have the question of whether they have the right to charge a heating fee and demand payment by the owners of premises that do not have heating appliances. Let's consider how it is solved in two situations: if there are no heating radiators in the project room and if they have been dismantled.

The basis for charging the consumer for heating is the provision of the corresponding service. By virtue of paragraph 2 of Art. 539 of the Civil Code of the Russian Federation, 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 supplying organization, and other necessary equipment, as well as providing metering of energy consumption. According to paragraphs. “e” clause 4 of the Rules for the Provision of Utility Services, the consumer may be provided with such a utility service as heating, that is, the supply of thermal energy through centralized heating networks and in-house engineering heating systems, ensuring the maintenance of a residential building, residential and non-residential premises in apartment buildings, premises , included in the common property of the house, proper air temperature.

Non-residential basement with transit pipelines

As a rule, non-residential premises in apartment buildings have heating devices; accordingly, for their owners, heating fees are calculated in accordance with the general procedure. A special category consists of basement non-residential premises in which there are no heating radiators, but there are heating system pipelines.

Courts often refer to the currently ineffective Methodology for determining the amount of thermal energy and coolant in municipal heating water systems, approved by Order of the State Construction Committee of the Russian Federation dated 05/06/2000 No. 105. According to the note to clause 1 of Appendix 1 “Heating” to this document a heated basement should be considered a basement in which, in order to maintain the design value of the air temperature, heating is provided by the project and carried out using heating devices (radiators, convectors, registers made of smooth or finned pipes) and (or) uninsulated pipelines of the heating system or heating network. In its turn, if the project did not provide for basement heating, the above-mentioned pipelines must be covered with thermal insulation.

Accordingly, if, based on the results of an inspection of the premises, it is established that there are uninsulated pipelines of the heating system (usually supply and return) or hot water supply, and the temperature in the room corresponds to standard indicators in the absence of additional heating devices (for example, electric heaters), then the heating service is in this premises is provided and the owner is obliged to pay for it. Otherwise, it would mean imposing the obligation to pay for thermal energy spent on heating the defendant’s premises and not related to standard losses due to the lack of thermal insulation of pipes, on other owners of the premises of an apartment building(decrees of the Supreme Court of Justice dated 08/07/2015 in case No. A79-6883/2014, the Seventeenth Arbitration Court of Appeal dated 11/18/2015 in case No. A60-16073/2015).

At the same time, if an insulated pipeline is laid in the room and the air temperature is maintained by an electric heater, there is no reason to charge the owner for heating. Otherwise, it would mean that the contractor intends to recover from the owner of the premises the consumption of thermal energy for technological losses during its transportation, which are taken into account when approving the tariff (in relation to losses through external networks) and the consumption standard (in relation to intra-house losses), and if there is a utility cost, they are paid by the owners heated premises (resolutions of AS UO dated 02/11/2015 No. F09-10034/14, F09-9985/14, AS VSO dated 10/15/2014 in case No. A10-2458/2013, AS ZSO dated 02/20/2015 No. F04-15650/2015 , AS SZO dated October 27, 2015 in case No. A42-9616/2014).

The court will side with the owner of the premises and deny the management company’s claim unless the latter proves that the actual consumption of thermal energy received through heat release from the insulated heating and hot water supply pipelines of the house passing through the defendant’s premises allows maintaining the required air temperature in this premises without installation additional equipment (Resolution of AS PO dated June 11, 2015 No. F06-23212/2015).

The absence or presence of thermal insulation on the common house main pipelines of the heating system has become the main factor in resolving the issue of collecting heating fees from the owner of the same premises. Thus, in one case it was established that the pipelines were not insulated, therefore, the room was heated, so it was necessary to pay for the service (Decision of the Arbitration Court of the Chelyabinsk Region dated December 15, 2011 in case No. A76-1160/2011). Subsequently, the pipelines were insulated and the court refused to the contractor to collect payment for heating from the owner of non-residential premises due to the lack of heat-receiving devices (Resolution of the Federal Antimonopoly Service dated October 16, 2013 in case No. A76-21947/2012, the transfer of which was refused for review by the Ruling of the Supreme Arbitration Court of the Russian Federation dated 12/19/2013 No. VAS-17562/13).

At the same time, as noted above, at present this methodology has been declared invalid due to the publication of Order of the Ministry of Construction of the Russian Federation dated March 17, 2014 No. 99/pr “On approval of the methodology for commercial metering of thermal energy and coolant” (see Order of the Ministry of Construction of the Russian Federation dated July 31, 2014 No. 414/pr). However, the courts continue to rely on the conclusions made therein, although they do not provide references to the invalid document itself. In addition, SNiP 2.04.05-91* “Heating, ventilation and air conditioning”, approved by the USSR State Construction Committee on November 28, 1991, is still in force, according to clause 3.23* of which thermal insulation should be provided for pipelines of heating systems laid in unheated rooms. Therefore, the general conclusion is this: the presence of insulated transit pipelines indicates that the room is not heated.

A room with dismantled heating radiators

The rules for the provision of utility services prohibit the consumer (clause 35):

• to unauthorizedly dismantle or turn off the heating elements provided for in the design and (or) technical documentation for an apartment building or residential building, to unauthorizedly increase the heating surfaces of heating devices installed in a residential building above the parameters provided for in the design and (or) technical documentation;
• regulate indoor equipment used for the consumption of communal heating services, and take other actions as a result of which the air temperature in the apartment building will be maintained below 12 ° C;
• make unauthorized changes to in-house engineering systems.

In turn, according to clause 1.7.2 of the Rules and Standards for the Technical Operation of the Housing Stock, approved by Decree of the State Construction Committee of the Russian Federation dated September 27, 2003 No. 170, refurbishment and redevelopment of residential buildings and apartments (rooms), leading to a violation of the strength or destruction of the load-bearing structures of the building, disruptions in the operation of engineering systems and (or) equipment installed on it, deterioration of safety and appearance facades, violation of fire safety devices are not allowed.

In the overwhelming majority of cases, the dismantling of heating radiators is considered as a reconstruction of the premises, the implementation of which requires a project and is completed by an act of the acceptance committee (see Articles 26, 28 of the Housing Code of the Russian Federation). Accordingly, violation of the established procedure for dismantling batteries cannot give rise to legal consequences in the form of releasing the owner of the premises who committed such unauthorized actions from the obligation to pay for heat supply services. In addition, such actions, in relation to specific circumstances, can be considered as an abuse of the person who committed them, the right in relation to part of the common house heating system located in the premises belonging to this person, and the abuse of the right is prohibited by law (Article 10 of the Civil Code of the Russian Federation). Such conclusions were made in the resolutions of the AS Far Eastern Military District dated July 22, 2015 No. F03-2697/2015, dated August 26, 2015 No. F03-3356/2015. So, a circumstance that can be considered as a basis for collecting payment from the owner of the premises for thermal energy in the absence of heating radiators is the unauthorized dismantling of them (Resolution of the AS ZSO dated July 20, 2015 No. F04-20195/2015).

In practice, this position is popular among courts of general jurisdiction (Resolution of the Presidium of the Arkhangelsk Regional Court dated October 14, 2015 No. 44g-0033/2015, appeal rulings Supreme Court Republic of Bashkortostan dated October 20, 2015 No. 33-18314/2015, Supreme Court of the Republic of Buryatia dated July 22, 2015 in case No. 33-2710/2015, Kaliningrad Regional Court dated July 15, 2015 in case No. 33-3524/2015, Sakhalin Regional Court dated 06/11/2015 in case No. 33-1116/2015, Irkutsk Regional Court dated 05/05/2015 in case No. 33-3652/2015, Ruling of the Primorsky Regional Court dated 06/30/2015 in case No. 33-5415). Moreover, even if the premises are disconnected from heating, thermal energy is supplied for the maintenance of common property; accordingly, one of the components of the heating payment (heating payment for one-room heating system) must be paid (Appeal ruling of the Murmansk Regional Court dated 08/19/2015 No. 33-2425/ 2015). The courts also draw attention to the fact that the apartment is heated by heating other nearby premises, and this also indicates the impossibility of exempting the owner from paying for thermal energy (Appeal ruling of the Khabarovsk Regional Court dated 09.09.2015 in case No. 33-5777).

If the reconstruction was carried out legally, the absence of heating radiators indicates that communal heating services are not provided; heat losses from risers cannot be considered as a payable service. For example, such conclusions were made in the Resolution of the AS SZO dated April 23, 2015 No. F07-700/2015 in relation to premises transferred from residential to non-residential with the simultaneous dismantling of the heating system and installation of electric heaters with a thermostat, a thermal curtain, and heated floors.

At the same time, there are situations when the courts take into account only the actual absence of energy receiving devices, and the fact of unauthorized reconstruction of the central heating system is regarded as having no legal significance (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated April 15, 2014 in case No. A82-5198/2013, in the transfer of which review by way of supervision was refused by the Ruling of the Supreme Arbitration Court of the Russian Federation dated July 28, 2014 No. VAS-9767/14).

Please note: if the owner applies for an exemption from paying for heating, the inspection should not reveal the possibility of connecting heating radiators (this exists if there are connections to heating devices, brackets for hanging batteries, shut-off ball valves). If such a possibility exists, the court is unlikely to refuse the utility service provider to collect the debt from the owner of the premises (Resolution of the AS VSO dated August 28, 2015 No. F02-4259/2015).

If there have never been heating radiators in the room, you should determine whether it is considered heated (a sign of a heated room is the lack of thermal insulation on the main pipelines). If the pipelines are insulated, the management company must prove that the heat generation from them is sufficient to maintain the normal temperature without the use of additional equipment.

If the premises previously had heating radiators, the owner is not obliged to pay for the corresponding service if they are dismantled in the prescribed manner. Unauthorized dismantling does not exempt him from paying for heating. However, there are occasionally examples where confirmation of the fact that there are no radiators in the room is sufficient to make a decision in favor of the consumer.

On the tariff for the transportation of thermal energy through municipal heating networks

Accepted Head of the city of Stavropol (Stavropol Territory)

1. HEAD OF THE CITY OF STAVROPOL
2. RESOLUTION
3. dated October 5, 2001 N 5773
4. ABOUT THE TARIFF FOR THE TRANSPORTATION OF THERMAL ENERGY
5. BY MUNICIPAL HEATING NETWORKS
6. In connection with the implementation by the municipal unitary enterprise "Teploset" of transportation of thermal energy from departmental boiler houses to the city's social infrastructure facilities and in accordance with the results of the examination of the tariff for thermal energy carried out by the city administration, I decide:
7. 1. Establish, from October 1, 2001, a uniform citywide economically justified tariff for the transportation of thermal energy through municipal heating networks in the amount of 25.8 rubles per 1 Gcal (excluding VAT) of transported heat.
8. 2. Set the validity period of this tariff until December 31, 2001.
9. 3. Approve a standard agreement for the transit of thermal energy through municipal heating networks (appendix).
10. 4. Control over the implementation of this resolution is entrusted to the director of the department of housing, communal services and transport of the Stavropol city administration A.I. Skornyakov.
11. Head of the city of Stavropol
12. M.V.KUZMIN

Standard contract for the transit of thermal energy through municipal heating networks

1. (pre)g. Stavropol "___"_____________________, _________________________________________, hereinafter referred to as the Customer, represented by ______________________________, acting on the basis of _______________, on the one hand, and ___________________ ________, hereinafter referred to as the Contractor, represented by the director ______________________________, acting on the basis of the Charter, on the other hand, concluded this agreement as follows.(/pre)
2. 1. The Subject of the Agreement
3. 1.1. The Contractor, using its networks, undertakes, on the Customer’s instructions, to transit the coolant to heat consumers in accordance with the appendices to the contract (list of consumers, addresses, heat load by type of heat consumption, amount of transported heat, temperature schedule for quality regulation of network water). The customer undertakes to make payment on time.
4. 2. Obligations of the parties
5. 2.1. The Contractor undertakes:
6. 2.1.1. Deliver the coolant from the boundary of the balance demarcation of the heating networks of the Customer and the Contractor to consumers of thermal energy or to the heating networks on their balance sheet.
7. 2.1.2. Promptly disconnect damaged sections of heating networks and heat consumption systems, eliminate emergency coolant leaks in your heating networks within the standard time required to eliminate them.
8. 2.1.3. Perform disconnections and connections of heating networks and heat consumption systems according to the Customer’s requests.
9. 2.1.4. Comply with the standard leakage of network water.
10. 2.1.5. Provide operational information when performing operational switching in heating networks.
11. 2.2. The customer undertakes:
12. 2.2.1. Supply coolant in accordance with the agreed temperature and hydraulic conditions.
13. 2.2.2. In a timely manner, before the 3rd day of the month following the settlement month, provide the Contractor with information on the volume of transported heat, confirmed by a bilateral act drawn up by responsible representatives of the parties.
14. 2.2.3. Pay for the transit of thermal energy in a timely manner in accordance with the terms of the contract.
15. 3. Responsibility of the parties
16. 3.1. For violation of payment terms for the transit of thermal energy, the Contractor has the right to charge the Customer a bank interest for the use of other people's funds in the amount of the discount rate of the Central Bank of the Russian Federation in accordance with the Civil Code of the Russian Federation (Article 395).
17. 3.2. If network water losses in the Contractor's networks exceed the standard value, confirmed by a bilateral act, during the billing period, the amount of payments for transit services will be reduced by the cost of excess coolant losses, calculated in a one-time amount.
18. 4. Contract price
19. 4.1. The price of this agreement is determined by the amount of thermal energy transported through the Contractor's networks at the current tariff of _________ rub./Gcal (including VAT), approved by the resolution of the mayor.
20. The contract price may be changed if the tariff for heat delivery and the volume of transported heat energy change.
21. 4.2. The approximate annual amount of thermal energy transported through the Contractor's networks is __________ t/Gcal. The estimated price of the contract is __________ rub. VAT included.
22. 4.3. The price of additional work specified in clause 2.1.3 of the contract for operational shutdowns and switching of consumers is determined by the estimated cost of the work.
23. 5. Terms of payment
24. 5.1. Payment under this agreement is made monthly no later than the 5th day of the month following the settlement month, by bank transfer, through payment orders. Payment under the agreement may be made in another form by agreement of the parties.
25. 5.2. Payment for additional work is made upon actual completion based on properly executed documents.
26. 5.3. The billing period is determined from the 1st to the last day of the month.
27. 5.4. The final payment under the contract is made by the Customer no later than 10 days after termination of the contract.
28. 6. Duration of the contract
29. (pre) 6.1. This agreement is concluded for a period from __________________ to ______________________.(/pre)
30. 6.2. The contract is considered extended for the next year if neither party, a month before its end, declares its revision or termination.
31. 7. Other conditions
32. 7.1. All disputes and disagreements arising between the parties under this agreement or in connection with it are resolved through negotiations between the parties.
33. 7.2. If it is impossible to resolve disagreements through negotiations, they are subject to consideration in an arbitration court in the manner prescribed by law.
34. 7.3. The agreement is drawn up in 2 copies, one for each of the parties.
35. 7.4. In cases not provided for in the contract, the parties are guided by current legislation.
36. 7.5. The annexes to the agreement are an integral part of it.
37. (pre) Legal addresses and payment details CUSTOMER: CONTRACTOR: address ________________________ address ________________________ Tel. _________________________ Tel. _________________________ INN __________________________ INN __________________________ R/Account R/Account ______________________________ ______________________________ BIC _______ INN of the bank ________ BIC _______ INN of the bank ________ C/Account _________________________ C/Account _________________________ Code for OKONH _____ OKPO ______ Code for OKONH _____ OKPO ______ Signatures of the parties: CUSTOMER: CONTRACTOR: ______________________________ ______________________________ (/pre)