VI. Procedure for calculating and paying utility bills

SOLUTION

In the name Russian Federation

Proletarsky District Court of Tula, consisting of:

Chairman Charina E.V.,

Under Secretary V.I. Bryanskaya,

Featuring:

Representative of the plaintiff Chernyshova L.V. by proxy of Glazkov A.A.,

The representative of the defendant - the limited liability company "Management of Capital Structures of the City of Tula" by power of attorney Sdobnikova E.O.,

Having considered in open court on the premises of the Proletarsky District Court of Tula civil case No. 2-1015/2015 on the claim of Chernyshova L.V. to the limited liability company "Management of Capital Structures of the City of Tula" on the recognition of the illegality of calculating the payment for the utility service "hot water" for the period from DD.MM.YYYY to DD.MM.YYYY, the obligation to recalculate the payment for the utility service "hot water" , compensation for moral damage and collection of a fine for failure to voluntarily meet consumer requirements,

installed:

Chernyshova L.V. filed a lawsuit against the limited liability company "Management of Capital Structures of the City of Tula" (hereinafter referred to as LLC "Management of Capital Structures of the City of Tula") to declare illegal the calculation of fees for the utility service "hot water" for the period from DD.MM. YYYY according to DD.MM.YYYY, the obligation to recalculate the payment for the hot water utility service, compensation for moral damages and collection of a fine for failure to voluntarily meet consumer requirements.

In support of the stated requirements, she referred to the fact that she is the owner of apartment No. apartment building, which is managed by LLC “Management of Capital Buildings of the City of Tula”. Having checked the calculation of the payment for the “hot water” utility service, I drew attention to the tariff arbitrarily set by the defendant, used in calculating the payment for hot water supply and changing in the period from DD.MM.YYYY to DD.MM.YYYY, after which in a written statement from DD .MM.YYYY asked LLC "Management of Capital Structures of the City of Tula" to recalculate the payment for the utility service "hot water" for the period from DD.MM.YYYY to DD.MM.YYYY in accordance with clause 54 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings approved by Decree of the Government of the Russian Federation dated 05/06/2011 No. 354, and the specific consumption of thermal energy for heating water established by Resolution of the Tula Region Committee on Tariffs dated 05/19/2014 No. 20/45 for CJSC "Tulateploset" in the amount, when applied (specific consumption of thermal energy for heating water), the tariff for hot water supply services will be instead of the values ​​​​used by the defendant, however, LLC "Management of Capital Structures of the City of Tula" responded with a categorical refusal, citing the use when calculating the consumer's payment for utility services for hot water water supply during the requested period of formula 20 of Appendix No. 2 to the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354.

Based on the foregoing, she asked the court to declare illegal the calculation by LLC "Management of Capital Structures of the City of Tula" of the payment for the utility service "hot water" for the period from DD.MM.YYYY to DD.MM.YYYY without taking into account the tariff established for JSC "Tulateploset" by resolution Committee of the Tula Region on Tariffs from DD.MM.YYYY No. in the amount; oblige LLC "Management of Capital Buildings of the City of Tula" to recalculate the payment for the utility service "hot water" for the period from DD.MM.YYYY to DD.MM.YYYY in the amount according to the calculation presented by her (Chernyshova L.V.); to recover from LLC "Management of Capital Structures of the City of Tula" in her (L.V. Chernyshova's) favor compensation for moral damages in the amount of a fine for failure to voluntarily satisfy consumer requirements in the amount of 50% of the amount collected by the court.

Subsequently, after the court received information from the Tula Regional Tariff Committee about the approved two-component tariffs for hot water supply services (for a closed hot water supply system), plaintiff Chernyshova L.V. clarified the stated requirement for the obligation of LLC "Management of Capital Structures of the City of Tula" to recalculate the payment for the utility service "hot water" for the period from DD.MM.YYYY to DD.MM.YYYY by indicating a different recalculation amount (instead of the previously calculated ones).

At the court hearing, plaintiff Chernyshova L.V. did not appear, was notified of the time and place of its holding, in a written statement she asked the court to consider the case in her absence with the participation of a representative by proxy, Glazkov A.A.

Representative of the plaintiff Chernyshova L.V. by proxy Glazkov A.A. at the court hearing, he supported the updated claims of his trustee, explaining that when calculating the amount of payment for the utility resource “hot water” in the period from DD.MM.YYYY to DD.MM.YYYY LLC “Management of Capital Structures of the City of Tula” did not use the specific value thermal energy consumption for heating water, established by resolution of the Tula Region Tariff Committee dated May 19, 2014 No. 20/45 for Tulateploset CJSC in the amount.

The representative of the defendant is LLC "Management of Capital Structures of the City of Tula" by proxy of Sdobnikov E.O. at the court hearing, the clarified claims of Chernyshova L.V. did not admit it, submitted written objections to the claim, in which she indicated that the calculation of Chernyshova L.V. is based on the application of a tariff calculated by it in the amount, which cannot be agreed with, since this tariff is not approved in established by law ok. I noticed that the plaintiff requests that the defendant’s calculation of fees for the utility service “hot water” for the period from DD.MM.YYYY to DD.MM.YYYY be declared illegal without taking into account the tariff established for CJSC Tulateploset by the resolution of the Tula Region Tariff Committee dated 19.05 .2014 No. 20/45 in the amount, however, the resolution of the Tula Region Tariff Committee dated May 19, 2014 No. 20/45 did not establish a tariff in the amount. From the text of the said resolution it is clear that the meaning adopted by the plaintiff Chernyshova L.V. per tariff, is the specific consumption of thermal energy for heating water, which is indicated by the Tula Regional Tariff Committee for reference, and is not approved for use by all management organizations for settlements with consumers. She also indicated that neither the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354, nor in the Decree of the Tula Region Committee on Tariffs dated May 19, 2014 No. 20/45 , no other regulations establish a formula for calculating the cost of the “hot water” utility service, an integral part of which would be the value of the specific consumption of thermal energy for heating water. According to paragraph 54 of the mentioned Rules, the volume of a utility resource used in production is determined based on the readings of a meter recording the volume of such a utility resource, and in its absence, it is determined by the specific costs of such a utility resource for the production of a unit of thermal energy for heating purposes or a unit of hot water for hot water. water supply In an apartment building, a common building meter is installed for metering thermal energy entering the house and used, among other things, for the production of hot water using a central heating point located in the technical underground. Due to the lack of separate accounting of thermal energy consumed for heating and for the needs of hot water supply, LLC “Management of Capital Structures of the City of Tula”, as the volume of thermal energy consumed for the preparation of hot water, accepts the estimated volume specified in the agreement with the resource supply organization CJSC Tulateploset (during the heating season), or the entire volume of thermal energy supplied by the resource supply organization and recorded by a common house heat meter (during the inter-heating period, when heating services are not provided). The legality of using the contractual volume when calculating the cost of the public service “hot water” is confirmed by paragraph 121 of the Decree of the Government of the Russian Federation dated 18. 11.2013 No. 1034 “On commercial metering of thermal energy and coolant”, according to which, in the absence of separate metering, the amount of thermal energy and coolant spent on hot water supply is assumed to be equal to the values ​​​​established in the heat supply contract (the amount of heat load on hot water supply). I believed that the use of LLC "Management of Capital Structures of the City of Tula" when calculating the amount of payment for the utility resource "hot water" in case of its independent production according to formula 20 of Appendix No. 2 to the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354, components and their meanings not provided for by the legislator would be a violation of the law on the part of the management organization.

Guided by the provisions of the article, the court considered it possible to consider the case in the absence of the plaintiff L.V. Chernyshova, who was notified of the place and time of the hearing of the case.

After listening to the explanations of the participants in the process and studying the written materials of the case, the court comes to the following conclusion.

The court found that Chernyshova L.V. the apartment belongs to the right of common shared ownership, which is confirmed by a certificate of state registration of rights, series No. dated DD.MM.YYYY.

The organization that manages and operates the apartment building in which the plaintiff lives is LLC “Management of Capital Structures of the City of Tula.”

Apartment Chernyshova L.V. is equipped with an individual metering device (IMU) for hot water, and the apartment building is equipped with a common building metering device (GMU) for thermal energy. Hot water supply to a residential building is provided from a central heating point located in the technical underground. Hot water is prepared using plate heat exchangers; hot water is heated from the heating system of an apartment building.

From DD.MM.YYYY to the present, the supplier of thermal energy to a residential building is Tulateploset CJSC on the basis of agreement No. for the supply of thermal energy, under the terms of which the resource supplying organization has undertaken to supply thermal energy to the subscriber-management organization through the connected network in the amount agreed upon by the parties (Appendix No. 1) to provide residential premises in apartment buildings, which are managed by the subscriber, according to the calculation of heat consumption for hot water supply, made on the basis of the “Methodology for determining the need for fuel, electrical energy and water in the production and transmission of thermal energy and coolants in the system municipal heat supply", Moscow, 2003, "Methods for determining the amount of thermal energy and coolant in water systems of municipal water supply" (MDS 41-4.2000), approved by order of the Gosstroy of Russia dated 05/06/2000 No. 105.

To account for the amount of thermal energy entering a multi-apartment residential building, the developer’s project provides for the installation of two metering devices, the totality of which is a building-wide thermal energy metering device. Thus, a common house heat meter with serial number No. takes into account the thermal energy spent on the heating needs of entrances 1 and 2 of an apartment building, and a common house heat meter with a serial number takes into account the thermal energy spent on the heating needs of entrances 3, 4, 5 and 6. same home, as well as thermal energy spent on the production of hot water by the entire apartment building. A common house heat meter installed in apartment building, accepted for commercial registration DD.MM.YYYY by the resource supplying organization CJSC Tulateploset, about which relevant acts have been drawn up.

decided:

in satisfying the claims of Chernyshova L.V. to the limited liability company "Management of Capital Structures of the City of Tula" on the recognition of the illegality of calculating the payment for the utility service "hot water" for the period from DD.MM.YYYY to DD.MM.YYYY, the obligation to recalculate the payment for the utility service "hot water" ", compensation for moral damage and collection of a fine for failure to voluntarily comply with the consumer's requirements are refused.

The court decision can be appealed to the Tula Regional Court by filing an appeal with the Proletarsky District Court of Tula within a month from the date the court made the decision in final form.

Chairman E.V. Charina

Court:

Proletarsky District Court of Tula ( Tula region)

Plaintiffs:

Chernyshova L.V.

Defendants:

LLC "UKS Tula"

Judges of the case:

Charina Ekaterina Vladimirovna (judge)

Judicial practice on:

For utility bills

Judicial practice on the application of Art. 153, 154, 155, 156, 156.1, 157, 157.1, 158 Housing Code of the Russian Federation

Supreme Court The Russian Federation has put an end to disputes about the procedure for determining the volume of consumption of thermal energy used to heat water in order to provide public services for hot water supply. Now the resource supplying organization is obliged to charge fees to the management company according to the same rules that the management company charges to the owners of apartment buildings. How could it be otherwise?! - you will be surprised. We answer...

We have written for a long time and many times about the discrimination that has developed in the housing and communal services market, thanks to skillful lobbying of the interests of energy monopolists (or inept regulation of the legislative process) in our country. One way or another, utility companies managed to push the state away from regulating hot water tariffs, although formally (by law) it was supposed to do this. But with the introduction of the so-called two-component tariff, the price for hot water supply became floating (again, by law) and, in fact, unregulated.

It is strange that the state itself allowed control levers in the housing and communal services sector to be taken away from itself and did not react to the situation for a long time. Or rather, all attempts to respond and adopt legislative initiatives were, in fact, leveled by introducing amendments to the final version of regulatory documents, which made them best case scenario useless, but more often than not, it introduced a certain imbalance in the system. Let me remind you that we have already reported on those numerous attempts - letters with negative reviews of bills and protests that our deputies of the Legislative Assembly from the United Russia faction sent to the federal center.

How a resource turns into a service

Meanwhile, management organizations tried to protect their rights on their own. However, arbitration courts made decisions in favor of energy workers, interpreting the legislation in their interests. In this case, an obvious incident arose, which for some reason was stubbornly ignored. So, it turned out that a communal resource was supplied to the apartment building (water and heat spent on heating it), but inside the house it was like a makhalay-bakhalay! - DHW is mixed and appears, that is, a utility service. As a result of this “magical” transformation of hot water from a resource into a service, a difference in charges arose. According to the metering device, the resources provided the management company with one amount for payment, and the management company was allowed to take another, significantly smaller amount from the residents - no more than the standard. This difference can be called differently: “dropping expenses”, “imbalance”, “general household needs” or something else, but this does not change the essence.

Because of this imbalance in accruals, management companies accumulated millions in debt, which brought them to the brink of bankruptcy and actually put them in a dependent position on resource suppliers. Energy companies could at any time sue and demand from the management company or homeowners association money that they simply do not have. After all, the management organization has no other funds other than what it collects from owners for its services,” commented Alexander POTAPOV, deputy chairman of the presidium of the Coordinating Regional Council of Owners in Housing and Communal Services. - We have adopted a standard in our region, but resource providers (and mostly Ulyanovsk consumers receive heat and hot water from the sources of PJSC T Plus) ignored it when calculating. And when we tried to prove that this was wrong, for some reason the arbitration courts sided with thermal workers, emphasizing Resolution No. 124 of the Government of the Russian Federation and not paying attention to Resolution No. 354. And finally, I believe, justice has been done: the Supreme Court of the Russian Federation gave a ruling in which it pointed out the primacy of Resolution No. 354. In practice, speaking in simple language, this means that there will be no floating price for hot water supply and the cost of hot water will be measured not in the volume of purified chemical water and gigacalories spent on heating it, but in cubic meters, as was the case before. That is, it will be possible to install a regular water meter on a pipe with hot water and control the volume of its consumption. In the situation with the previously applied two-component tariff, such savings were actually reduced to nothing, since the lower hot water consumption fell, the more expensive suppliers charged for it.

Now the situation will change, which, according to the expert, will lead to a certain stability in the housing and communal services market, and will also reduce social tension. After all, everyone will pay the same price per cubic meter of hot water, and there will be no situations where in neighboring almost identical houses the cost of hot water differs significantly. In addition, resource specialists will charge management fees according to the same rules that management companies charge owners. That is, suppliers and consumers will be guided by Resolution No. 354. This will protect management organizations from unjustified debts and bankruptcy.

What the Supreme Court decided

To familiarize yourself with the landmark document, you can view it on the official website of the Supreme Court of the Russian Federation - ruling dated August 15, 2017 No. 305-ES17-8232 in case No. A41-27683/2014. There is quite an extensive text, the main theses of which we will now introduce you to in our own presentation.

1. The management organization should not pay for a communal resource in a larger volume than citizens would pay if they received it directly from resource providers. Before this, suppliers convinced us that the management company should be engaged in energy saving at home, and in order to stimulate it, it should be charged according to meter readings, and from residents - according to the standard. Not really. The management company is a performer, not a customer of services, and it is not it, but the owners, who make the decision to carry out (or not carry out) energy-saving measures in the apartment building.

2. The resource supplying organization itself should engage in energy saving and reduction of its costs. Distance from thermal power plants or different conditions of heating networks should not affect the cost of hot water for consumers in different apartment buildings. When calculating the cost of hot water supply, the amount of thermal energy for heating water should be determined according to established standards, and not according to general house metering devices. That is, it doesn’t matter whether your house has a heat meter or not - the cost of a cubic meter of hot water will be fixed, and not different from month to month. This procedure does not contradict paragraph 1 of Article 157 of the Housing Code of the Russian Federation, which provides for determining the volume of consumed utilities based on the readings of metering devices and only in their absence allows the application of utility consumption standards, since in the case under consideration thermal energy is not among the consumed utilities.

Key Takeaway

The rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354, apply to everyone (and resource providers are no exception). The ruling comes into force from the date of its issuance and can be appealed within three months. How the energy monopolists will react and whether they will try to argue with the Supreme Court of the Russian Federation is not yet known. Only one thing can be said for sure: they will definitely not give up trying to make their profit.

First Ulyanovsk portal

Expert commentary

The decision of the Supreme Court reflected the “mistakes” inherent in the legislator and the Ministry of Construction Housing Code RF and Decree of the Government of the Russian Federation dated 05/06/2011 No. 354.

Firstly, there are several schemes for the production of hot water (HW) with the supply of thermal energy (TE) from a resource supply organization (RSO).

Scheme 1. Hot water is prepared in the central heating point(TsTP) and comes to the house in finished form, where it is used by consumers. Then hot water is measured at the inlet by a hot water meter in cubic meters and is paid at the hot water tariff per cubic meter.

Scheme 2. Thermal energy (TE) received into the house is calculated by a collective heat meter and is partially spent on heating, and the other part on preparing hot water from cold water through a heat exchanger in the building’s ITP. There is no meter for heating energy spent on heating hot water in the house. A collective cold water (CW) meter was installed at the inlet from the water utility, and a second house CW meter was installed for its heating.

In this case, in accordance with PP No. 354, the calculation of the share of fuel cells for heating cold water is carried out according to standards approved by the regional government, and the payment for hot water consists of the cost of fuel cells for heating water and the cost of cold water spent on preparing hot water. The heating company receives the price only for the coolant according to the general heat meter, and the water utility receives the price for cold water according to the cold water meter at the entrance to the building. These amounts must be billed monthly by resource supply organizations (RSOs) for payment by the management company (MC). The management company distributes these amounts among consumers in the building.

Scheme 3. According to scheme 2, but there is no second house meter for heating it. Then, in accordance with PP No. 354, the calculation of the share of fuel cells for heating cold water and cold water for heating is carried out according to standards approved by the regional government, and the payment for hot water consists of the cost of fuel cells for heating water and the cost of cold water spent on preparing hot water according to the standards. The heating company should fairly receive the price only for the coolant according to the general heat meter, and the water utility should receive the price for cold water according to the cold water meter at the entrance to the building. These amounts must be billed monthly by resource supply organizations (RSOs) for payment by the management company (MC). The management company distributes these amounts among consumers in the building.

Scheme 4. Preferred. According to scheme 2, but additionally a heat meter is installed on the fuel cell to heat the cold water for the production of hot water in the building.

In schemes 2 and 3, discrepancies will arise between the invoices issued by the RSO and the bills for hot water supply and heating calculated to consumers. Typically, the amount of bills for all consumers in the building, taking into account TE standards for heating and HV standards, exceeds the amount of bills issued by RSO. In this case, the management company must return to consumers the difference that arises monthly in proportion to the consumption of hot water.

Taking into account the above, changes should be made to RF PP No. 354

16) in paragraph 38:

Paragraph six should be stated as follows:

“In the case of establishing two-component tariffs for hot water, the amount of payment for the hot water supply utility service is calculated based on the sum of the cost of the component for cold water intended for heating in order to provide the public service for hot water supply, and the cost of the component for thermal energy used to heat cold water. water for the purpose of providing public hot water supply services. It is not allowed to establish a two-component tariff for hot water if the thermal energy used to heat cold water and cold water are taken into account by collective (common house) heat energy metering devices without additional thermal energy and cold water metering devices for the preparation of hot water.”

20) paragraph 44 should be stated as follows:

"44. The amount of payment for utility services provided for general house needs in an apartment building equipped with a collective (common building) metering device, in which the provision of utility services is carried out by a resource supply organization in the cases established by paragraph 17 of the Rules, is determined in accordance with formula 10 of Appendix No. 2 to these Rules and distributed among consumers in proportion to the size of the total area of ​​residential or non-residential premises belonging to each consumer (in his use) in an apartment building in accordance with formulas 11 - 14 of Appendix No. 2 to these Rules.

In this case, the volume of utility services provided for general house needs for the billing period is calculated based on the principle of equality of the amounts of consumed volumes of utility services for general house needs and for individual consumption to the total consumption of a utility resource according to the collective (common house) metering device for each utility resource. [Further in the text]."

In Appendix 2 to PP No. 354:

paragraph 22 should be stated as follows:

"22. The amount of payment for utility services for hot water supply provided for the billing period in a residential premises (apartment) or non-residential premises and for maintenance common areas apartment building, in accordance with paragraph 54 of the Rules (two-component tariff for hot water), and individual hot water meters are not installed in all residential and non-residential premises in an apartment building in which collective (common house) meters are installed for hot water, cold water for heating and thermal energy for heating, part of which is spent on heating cold water in the heat exchanger and there is no thermal energy meter for heating cold water:

for the i-th room in which they are installed individual devices hot water metering is determined by formula 20:

R pgvi = V pgvi ×T xv + q t × V pgvi ×T t + V xv ODN ×S i /S rev ×T xv + V gv ODN ×q t ×S i /S rev ×T t,

V pgvi – volume consumed during the billing period in i-th core or non-residential hot water premises, determined according to the readings of an individual or general (apartment) meter in the i-th residential or non-residential premises.

T xv – tariff for cold water, established in accordance with the legislation of the Russian Federation;

q t – specific consumption of thermal energy for heating water, approved in accordance with the legislation of the Russian Federation by the authorized body, in order to provide public services for hot water supply;

T t – tariff for thermal energy, approved in accordance with the legislation of the Russian Federation by the authorized body, used for heating cold water to provide public services for hot water supply;

S i – area of ​​the i-th residential or non-residential premises equipped with a hot water meter;

S ob – total area of ​​residential and non-residential premises.

V gv ODN - standard for ODN for hot water, approved in accordance with the legislation of the Russian Federation by the authorized body for the purpose of providing public services for hot water supply;

for the j-th residential and non-residential premises not equipped with individual hot water meters, the amount of payment for hot water is determined by formula 20.1:

R bpgvj = (V gv D –ΣV pgvi) ×S j /S rev ×T xv + V xv ODN ×S j /S rev ×T xv + V gv ODN ×q t ×S j /S rev ×T t,

V gv D – the volume of hot water consumed by an apartment building during the billing period according to the readings of the collective (common building) hot water meter;

(V gv D –ΣV pgvi) ×S i /S about ×T hv – individual component of the payment for hot water in a room without a meter;

V xv ODN ×S j /S about ×T xv + V gv ODN ×q t ×S j /S about ×T t – component of the payment for hot water for the maintenance of common property (CHP) for premises without a meter;

S j – area of ​​the j-th residential or non-residential premises not equipped with a hot water meter.

If all residential and non-residential premises in such an apartment building are equipped with individual hot water meters, the payment for hot water in the i-th residential and non-residential premises is determined by formula 20, where V gv ODN is determined by formula 20.2:

V gv ODN = V gv D - ΣV pgvi,

ΣV pgvi – the sum of the readings of all individual hot water meters.

The balance of payments (up to a penny) in the billing period is carried out according to formula 20.3:

ΣР pgvi +Σ P bpgvj = P xv D + P Dt,

ΣР pgvi – the amount of payments for hot water in premises in which individual hot water meters are installed;

Σ R bpgvi – the amount of payments for hot water in premises where individual hot water meters are not installed;

P xv D – payment for cold water for heating for hot water supply;

P Dt – payment for the share of thermal energy spent on heating cold water in an apartment building is calculated using formula 20.4:

P Dt = q t × V gv D ×T t.”;

Insert paragraph 22(1) to read as follows:

“22(1) The amount of payment for utility services for hot water supply provided for the billing period in a residential premises (apartment) or non-residential premises in an apartment building, in accordance with paragraph 54 of the Rules (two-component tariff for hot water) in the absence of collective (common house) metering devices cold water and the v-th communal resource (except for coolant energy), used during the billing period for the production of thermal energy, in order to provide public services for heating water and in the absence of a collective (common house) hot water meter for the purpose of providing public services for hot water supply , consumed in residential and non-residential premises and for general house needs of an apartment building:

for the i-th room, in which individual hot water meters are installed, is determined by formula 20.5:

R pgvi = V pgvi ×T hv + q v × V pgvi ×T v + V gv ODN × V pgvi / (ΣV pgvi + Σ q gv ×N regi)×T gv;

for the j-th room, in which individual hot water meters are not installed, the payment for hot water is determined by formula 20.6:

P bpgvj = q gv ×N regj ×T hv + q v × (q gv ×N regj) ×T v + V gv ODN × (q gv ×N regj) / (ΣV pgvi + Σ q gv ×N regj) ×T gv;

q v - specific consumption of the v-th communal resource for water heating, approved in accordance with the legislation of the Russian Federation by the authorized body, in order to provide public services for hot water supply;

q gv – standard hot water consumption per person living in a residential premises or working in a non-residential premises, approved in accordance with the legislation of the Russian Federation by the authorized body;

T xv – tariff for cold water, approved in accordance with the legislation of the Russian Federation by the authorized body;

Tgv – tariff for hot water, approved in accordance with the legislation of the Russian Federation by the authorized body;

Т v – tariff for the v-th communal resource for water heating, approved in accordance with the legislation of the Russian Federation by the authorized body, used for heating cold water to provide public services for hot water supply;

N regi – the number of registered residents in the i-th residential premises or the number of workers in the i-th non-residential premises equipped with a hot water meter;

N regj – the number of registered residents in the j-th residential premises or the number of workers in the j-th non-residential premises not equipped with a hot water meter.”;

Insert clause 22(2) as follows:

“22(2). The amount of payment for the utility service for hot water supply provided for the billing period in a residential premises (apartment) or non-residential premises in an apartment building, in accordance with paragraph 54 of the Rules (two-component tariff for hot water) when equipping an apartment building with collective (common house) hot water meters and cold water used during the billing period for the production of hot water, and the absence of a collective (common house) metering device for the v-th communal resource used during the billing period for the production of thermal energy for heating water in order to provide public services for hot water supply consumed in residential and non-residential premises and for general house needs of an apartment building:

for the i-th room, in which individual hot water meters are installed, is determined by formula 20.7:

R pgvi = V pgvi ×T xv + (V gv D ×T gv - (Σ (q v × q gv ×N regj) ×T v) × V pgvi / V gv D + V gv ODN ×S i /S about × T gv;

for the j-th room, in which individual hot water meters are not installed, is determined by formula 20.8:

P bpgvj = q gv ×N regj ×T gv + q v × (q gv ×N regj) ×T v + V gv ODN ×S j /S about ×T gv”;

Insert paragraph 22(3) as follows:

“22(3). The amount of payment for the utility service for hot water supply provided for the billing period in a residential premises (apartment) or non-residential premises in an apartment building, in accordance with paragraph 54 of the Rules (two-component tariff for hot water) when equipping an apartment building with collective (common house) hot water meters and v-th communal resource used during the billing period for the production of thermal energy, and the absence of a collective (common house) meter for cold water used during the billing period for the production of hot water, in order to provide public services for hot water supply consumed in residential and non-residential premises and for general house needs of an apartment building:

for the i-th room, in which individual hot water meters are installed, is determined by formula 20.9:

R pgvi = V pgvi ×T xv + q v ×V v ×T v × V pgvi /V gv ODN +V gv ODN ×S i /S rev ×T xv + V ODN v × S i /S rev ×T v ;

for the j-th room, in which individual hot water meters are not installed, is determined by formula 20.10:

P bpgvj = q gv ×N regj ×T xv + q v × (q gv ×N regj) ×T v + V gv ODN ×S j /S about ×T gv.

The balance of payments (up to a penny) in the billing period is carried out according to formula 20.3.”;

General manager

Techem LLC

Candidate of Technical Sciences

OJSC "MOEK" filed a claim with the Arbitration Court of Moscow against the Homeowners Association "Zagorie 1" to collect the amount of debt for hot water supply in the amount of 626,251 rubles. 82 kopecks for the period from February 2012 to June 2012.

Homeowners' Association "Zagorye 1" does not agree with the presented requirements for the following reasons.

Between the defendant (HOA "Zagorye1") and the plaintiff (OJSC "MOEK") hot water supply contract No. 06.501001 GVS dated 01/01/2012 was concluded.

In accordance with clause 1.1 of this agreement, the heat supply organization undertakes to supply the Consumer, through the connected heating network, with hot water and/or thermal energy to heat cold water for the needs of hot water supply for its own needs or to provide public services to citizens, and the Consumer undertakes to accept hot water and/or thermal energy for heating cold water for hot water supply needs.

Clause 2.1 of the agreement dated January 1, 2012, the heat supply organization is obligated to supply hot water and/or thermal energy for heating cold water for hot water supply needs to the Consumer in the volumes stipulated by this agreement. The parties signed several additional agreements to this agreement. At the same time, in additional agreements concerning the contractual values ​​of hot water supply volumes, no values ​​are established. Additional agreements, which contain the values ​​of thermal energy consumption for heating cold water for the needs of hot water supply (Appendix 2, 3), contain the values ​​of the volume of thermal energy used to heat cold water for the needs of hot water supply.

On January 13, 2006, agreement No. 214252 was concluded between the Homeowners Association "Zagorye 1" and the Moscow State Unitary Enterprise "Mosvodokanal" for the supply of water and the reception of wastewater into the city sewerage system. The subject of this agreement is the supply of cold water for the needs of an apartment building from water supply systems and the receipt of waste water into the sewerage system.

The subject of this agreement is the supply of cold water for the needs of an apartment building from water supply systems and the receipt of waste water into the sewerage system.

MGUP Mosvodokanal issues invoices to the defendant for supplied cold water based on a common house cold water meter.
Payment by the subscriber is made in the order of acceptance of payment requests presented by MGUP Mosvodokanal for collection with calculations attached.
Part of this water is heated by OJSC "MOEK" into hot water (agreement No. 06.501001 DHW dated 01/01/2012). At the same time, the plaintiff made calculations for heating using an arithmetic method due to the lack of a common house hot water meter, and without taking into account the volume of cold water supplied by MGUP Mosvodokanal.
According to the acts of acceptance and transfer of energy resources for the period from 01.02.2012 to 30.06.2012 under agreement No. 06.501001GVS dated 01.01.2012 between OJSC "MOEK" and the homeowners association "Zagorie 1" hot water was supplied to residential building No. 38 on Lebedyanskaya Street in dimensions 16,615.79 m. cube, while according to acts of MGUP "Mosvodokanal" to house No. 38 On Lebedyanskaya Street, a total of 8274.8 cubic meters of cold water was supplied, including for heating it hot. In other words, the plaintiff heated cold water for the needs of an apartment building more than MGUP Mosvodokanal supplied it in total
Based on the foregoing, it follows that from 01.01.12 to 01.08.12, OJSC “MOEK” used those volumes of cold water for heating into hot water that had already been supplied to the house of the Federal State Unitary Enterprise “Mosvodokanal” under an agreement with the homeowners association “Zagorye 1” No. No. 214252 and paid by the HOA. That is, in essence, MOEK OJSC heated the cold water already purchased by the partnership.

Each apartment at Lebedyanskaya, 38 has hot water meters. Thus, consumers pay for hot water according to meters based on approved tariffs. At the same time, OJSC "MOEK" carries out calculations not for the actual consumption of hot water, but by the calculation method, that is, it calculates for the thermal energy spent on heating hot water (at the same time, the water is heated and circulated through the pipes several times).
In other words, the owners are forced to pay for the service for the supply of hot water twice: according to individual apartment hot water metering devices installed in their apartments and according to the overexpenditure resulting from arithmetic calculations of OJSC "MOEK"
From 01.08.2012 MGUP Mosvodokanal and OJSC MOEK entered into an additional agreement under which OJSC MOEK buys from MGUP Mosvodokanal a volume of cold water for heating it hot in order to transfer hot water for the needs of the population of house No. 38 on Lebedyanskaya Street, based on the average daily water consumption of 54.8 cubic meters. m.
11/13/2012 OJSC “MOEK” proposed to the homeowners association “Zagorye 1”, due to the lack of a common house meter, to make calculations based on the balance of water consumption provided by MGUP “Mosvodokanal” at the rate of 54.8 cubic meters. per day, which was formalized by an agreement of the parties, in which they approved the calculation of the supply of hot water based on the average daily volume of water consumption in the amount of 54.8, which indirectly confirms the illegality of calculations using the arithmetic method.
According to clause 3.3 of agreement No. 06.501001 GVS dated 01/01/2012, readings of the UTE installed in the Consumer’s building and owned by the Heat Supply Organization are taken by the Heat Supply Organization together with the Consumer’s representative. Based on the results of taking readings, a certificate and a reporting sheet are drawn up and sent to the Consumer. According to clause 4.2.5. contract, the plaintiff has the right to independently take testimony in the absence of the defendant, only if he is duly notified. However, the plaintiff, in violation of the terms of the contract, takes readings from the ITP unit in the absence of the defendant’s representative. Owner access to the premises where the ITP node is located is generally prohibited.
Decree of the Government of the Russian Federation dated May 23, 2006 No. 307 “On the procedure for providing utility services to citizens” regulates the relationship between providers and consumers of utility services, establishes their rights and obligations, responsibilities, as well as the procedure for monitoring the quality of provision of utility services, the procedure for determining the amount of payment for utility services using metering devices and in their absence, the procedure for recalculating the amount of payment for certain types of utility services during the period of temporary absence of citizens in the occupied residential premises and the procedure for changing the amount of payment for utility services when providing utility services of inadequate quality and (or) with interruptions exceeding the established one duration.
By virtue of paragraph 8 of the Rules approved by Decree of the Government of the Russian Federation N 307 the terms of the agreement on the acquisition of utility resources concluded with resource supply organizations in order to provide the consumer with utility services must not contradict these Rules and other regulatory legal acts of the Russian Federation when determining the terms of the energy supply agreement concluded between the resource supply and management organizations.
According to paragraph 1 of Article 157 of the Housing Code the amount of payment for utilities is calculated based on the volume of consumed utilities, determined by the readings of metering devices, and in their absence - based on the standards for the consumption of utilities approved by the authorities state power subjects of the Russian Federation in the manner established by the Government of the Russian Federation.
HOA "Zagorie 1" is not a producer (supplier) of energy; when concluding a contract for heat and water supply (hot water) of residential buildings, it acts in the interests of citizens - residents of the houses, and therefore the conditions for providing them with this type of utilities, including regarding the procedure for determining the amount of energy to be paid in the absence of metering devices, cannot be defined in the energy supply contract otherwise than in the normative act regulating the provision of utility services to citizens as direct consumers. Otherwise, it would lead to different definitions of the amount of energy consumed in the relations between its end consumers and the management company and between the management company and the energy supplier, and, as a result, to unjust enrichment or losses management company, which has no other sources of payment for energy costs except for payments received from residents.
This position is confirmed by the resolution Presidium of the Supreme Arbitration Court dated July 15, 2010 No. 2380/10.
According to the Decree of the Government of the Russian Federation No. 307 if the contractor is a homeowners' association, housing construction, housing or other specialized consumer cooperative or management organization, then the calculation of the amount of payment for utilities, as well as the purchase by the contractor of cold water, hot water, sewerage services, electricity, gas and heat energy supply is carried out at tariffs established in accordance with the legislation of the Russian Federation and used to calculate the amount of payment for utility services by citizens.
According to clause 15 of these Rules provision of utility services, the amount of payment for cold and hot water supply, heating, sewerage, electricity and gas supply is calculated according to the tariffs established for the Russian North Ossetia in the manner prescribed by the legislation of the Russian Federation. If the contractor is an HOA, housing construction, housing or other specialized consumer cooperative or management company, the calculation of the amount of payment for utilities, as well as the purchase by the contractor of cold and hot water, sewerage services, gas, electricity and heat energy is carried out according to tariffs established on the basis of legislation of the Russian Federation and used to calculate the amount of payment for utility services.
At point 2 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 05.10.2007 No. 57 it is also indicated that the HOA is not an economic entity with independent economic interests different from the interests of the HOA members. The corresponding obligations of the HOA to organizations directly providing services (performing work) cannot be greater than if these organizations conclude direct contracts with residents - members of the HOA, and therefore, when selling services at regulated prices (tariffs) (for example, services for energy supply) the HOA pays for such services intended for residents at tariffs approved for the population, and not for legal entities. Arbitration courts apply this conclusion in practice and in relation to management organizations. IN