Disputes over the definition of the boundaries of the engineering networks of the Moscow Ring Road. Sample act of delimitation of the balance sheet ownership of heat networks

25.10.2022

Establishing the boundaries of the zone of operational responsibility between the management company and RSO.

Timely establishment of the zone of operational responsibility, determination of its boundaries between the management company (or HOA, ZHSK) and the resource supply organization (hereinafter RSO) is one of the significant problems that arises when resolving issues of legal, industrial relations between the parties and which arise in cases of ensuring the necessary operation of engineering communications of an apartment building (hereinafter MKD) of the housing stock. For management companies, this issue becomes most significant in the event of accidents on networks that are not related to the common property of the owners in the MKD, but which were included in the agreement between the management company and the RSO in the form of an agreement to the agreement. On the basis of an agreement that defines the area of operational responsibility, the obligation to repair these networks, for example, outside the perimeter of the building, is assigned to the management company, which ultimately leads to an additional financial burden on the management company. This additional financial burden is most often very significant for the management company, since work on networks outside the perimeter of the building involves costly earthworks involving a rented,special equipment, accompanying registration of permits.

How to prevent the development of such a situation? Let us dwell in more detail on the basic concepts of operational responsibility and balance sheet ownership. From the analysis of legal acts, it follows that the boundary of the balance sheet divides the engineering networks on the basis of ownership or other legal ownership, and the boundary of operational responsibility implies a dividing line on the basis of laying the burden of maintaining engineering communications. So, for example, in the "Rules for cold water supply and sanitation", approved by the Decree of the Government of the Russian Federation of July 29, 2013 No. 644, the definitions of these terms are clearly indicated:

"balance ownership boundary" - the line of dividing objects of centralized cold water supply and (or) water disposal systems, including water supply and (or) sewer networks, between owners on the basis of ownership or possession on a different legal basis;

"limit of operational responsibility" - the dividing line of objects of centralized cold water supply and (or) sewerage systems, including water supply and (or) sewer networks, on the basis of duties (responsibility) for the operation of these systems or networks, established in a cold water supply agreement, agreement water disposal or a single contract for cold water supply and sanitation, an agreement for the transportation of cold water, an agreement for the transportation of wastewater;

When concluding resource supply agreements for MKD, the boundary of the balance sheet will separate the engineering networks that are the common property of the owners of the premises from other engineering networks. In this regard, it is necessary to clearly understand what belongs to common property and what does not.

WITH rest of common propertyclearly defined by the head I. in the ruling and Government of the Russian Federation dated August 13, 2006 No. 491 " ON THE APPROVAL OF THE RULES FOR THE MAINTENANCE OF COMMON PROPERTY IN AN APARTMENT BUILDING AND THE RULES FOR CHANGING THE AMOUNT OF PAYMENT FORMAINTENANCE AND REPAIR OF RESIDENTIAL PREMISES IN THE EVENT OF PROVISION OF SERVICES AND PERFORMANCE OF WORKS ON MANAGEMENT, MAINTENANCE AND REPAIR OF GENERALPROPERTY IN AN APARTMENT BUILDING OF IMPROPER QUALITY AND (OR) WITH BREAKS EXCEEDING THE ESTABLISHED DURATION"

In accordance with paragraph 8 of these Rulesthe outer boundary of networks of electricity, heat, water supply and sanitation, information and telecommunication networks (including networks of wired radio broadcasting, cable television, fiber optic network, telephone lines and other similar networks), which are part of the common property, unless otherwise not established by the legislation of the Russian Federation, is exterior wall boundary of an apartment building, and the boundary of operational responsibility in the presence of a collective (common house) metering device of the corresponding communal resource, unless otherwise provided by the agreement of the owners of the premises with the utility service provider or the RSO, is the junction of the collective (common house) metering device with the corresponding engineering network included in the MKD. The external boundary of the gas supply networks that are part of the common property is the junction of the first locking device with the external gas distribution network.

So, specifying clause 8 of the Rules for the maintenance of common property, one can refer to clause 14 of the Water Supply Rules, which states: subject to agreement the demarcation can be established along the well (or chamber), to which devices and structures are connected to connect the subscriber to the public water supply or sewer network. With regard to heating networks, it is possible to set the operational responsibility limit on the wall of the thermal chamber at the subscriber's input or according to the first disconnecting devices. All of these options must be agreed in the operational responsibility delimitation act.

However, the act of delineation of operational responsibility is upon reaching agreement .

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

However, the act of delineation of operational responsibility is upon reaching agreement between the RCO and the subscriber on this issue, and if this is not achieved, the limits of liability are determined by the boundaries of the balance sheet. Therefore, the act of delimitation of operational responsibility may not always be present. The same is evidenced by the analysis of judicial practice in disputes about the terms of contracts arising from their conclusion..

Based on the foregoingthe following conclusion can be drawn:

in the absence of an act of delimitation of operational responsibility, the boundary is established at the junction of the collective (common house) metering device, and in its absence -along the outer border of the wall of an apartment building - the border of the common property of the owners of the MKD premises.

Additionally, it can be pointed out that problems in concluding a contract and delimiting operational responsibility arise when the balance holder-owner of the engineering networks section from the wall of the MKD to the networks that are on the balance sheet of the RSO is unknown. These plots are often ownerless, but necessary to supply the house with resources and are located on the adjacent land, which is part of the common property. As a rule, RNOs try to place the burden of maintaining such network sections on the managing organization and owners of MKD premises, arguing that the maintenance of these sections is not included in the tariffs. Meanwhile, even in this situation, there are no legal grounds for delimiting operational responsibility for tie-in into engineering networks, which are on the balance sheet of the RSO. It should be borne in mind that, by virtue of paragraph 1 of Art. 421 of the Civil Code of the Russian Federation, legal entities are free to conclude an agreement. According to paragraph 4 of the named article, the terms of the contract are determined at the discretion of the parties. When resolving these disputes, the courts note that the RNO has the right to apply to the regulatory body with documents confirming the costs of paying for services for the transfer of a resource through networks that have not been transferred to its operation, in order to account for and compensate them in the subsequent period of tariff regulation.

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"Housing and communal services: accounting and taxation", 2009, N 9

One of the most painful issues when concluding agreements with resource supply organizations (RSO) for HOAs, housing cooperatives and management companies (hereinafter referred to as management organizations) is the delimitation of the so-called operational responsibility and the definition of its boundaries. However, the practice of the Nizhny Novgorod Association of HOA shows that for HOA and housing cooperatives this issue often becomes relevant not even at the time of concluding such an agreement, but in the event of accidents on networks that are not related to the common property of owners in an apartment building, when, due to a recklessly signed agreement, the obligation repair of these networks is assigned to these HOAs and housing cooperatives.

It is quite obvious that additional meters of engineering communications impose on the managing organization (and, therefore, on the owners of premises in an apartment building) an additional financial burden on their maintenance and repair, which sometimes, for example, HOAs are beyond the power of, and also imply inevitable expenses for covering utility loss.

Regulatory regulation

When considering this issue, one should first of all refer to the Civil Code of the Russian Federation, which regulates all energy supply contracts. According to Art. 539 of the Civil Code of the Russian Federation, under an energy supply agreement, an 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 mode of its consumption provided for by the agreement, ensure the safety of operation of the energy networks under his control and the serviceability of the devices used by him and equipment related to energy consumption. The power 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 power supply organization, and other necessary equipment, as well as providing accounting for energy consumption.

The general provisions of the Civil Code of the Russian Federation regarding the issue of the boundaries of operational responsibility have been developed in such regulations as:

Federal Law No. 35-FZ of March 26, 2003 "On the Electric Power Industry";
The Rules for the Functioning of Retail Electricity Markets in the Transitional Period of Reforming the Electricity Industry, approved by Decree of the Government of the Russian Federation No. 530 of August 31, 2006 (hereinafter referred to as the Rules for the Electricity Industry);
Rules for non-discriminatory access to services for the transmission of electrical energy and the provision of these services, approved by Decree of the Government of the Russian Federation of December 27, 2004 N 861 (hereinafter referred to as the Access Rules);
Rules for the use of public water supply and sewerage systems in the Russian Federation, approved by Decree of the Government of the Russian Federation of February 12, 1999 N 167 (hereinafter referred to as the Water Supply Rules);
Rules for the maintenance of common property;
Circular letter of the Gosstroy of Russia dated 10/14/1999 N LCh-3555/12 "On Explanations on the Application of the Rules for the Use of Communal Water Supply and Sewerage Systems in the Russian Federation".

Operational responsibility and balance sheet ownership Concepts

In the acts listed above, the concept of the boundaries of operational responsibility invariably stands next to the concept of the boundaries of the balance sheet, while there is no general definition for either one or the other in the legislation. Meanwhile, there are a number of definitions within the framework of the regulation of various energy supply contracts. So, in accordance with clause 1 of the Water Supply Rules:

boundary of the balance sheet - the line of dividing the elements of water supply and (or) sewerage systems and structures on them between the owners on the basis of ownership, economic management or operational management;
operational responsibility boundary - the dividing line of elements of water supply and (or) sewerage systems (water supply and sewerage networks and structures on them) on the basis of duties (responsibility) for the operation of elements of water supply and (or) sewerage systems, established by agreement of the parties. In the absence of such an agreement, the boundary of operational responsibility is established along the boundary of the balance sheet.

Regarding the supply of thermal energy, there is no such definition at all, but paragraph 31 of the Letter of the FTS of Russia dated February 18, 2005 N SN-570/14 states that the supplied thermal energy is the thermal energy supplied to the consumer of thermal energy (consumers) at the boundary of operational responsibility ( balance affiliation).

The most complete definitions of the concepts under consideration relate to the supply of electrical energy. According to clause 2 of the Access Rules:

an act of delimitation of the balance sheet ownership of electric networks - a document drawn up in the process of technological connection of power receiving devices (power plants) of individuals and legal entities to electric networks, defining the boundaries of the balance sheet ownership;
the act of delimitation of the operational responsibility of the parties a document drawn up by the grid organization and the consumer of services for the transmission of electric energy in the process of technological connection of power receiving devices, which determines the boundaries of the responsibility of the parties for the operation of the relevant power receiving devices and electric grid facilities;
balance sheet property boundary - a line for dividing electric power facilities between owners on the basis of ownership or possession on another basis provided for by federal laws, which determines the boundary of operational responsibility between a grid organization and a consumer of electric energy transmission services (a consumer of electric energy in whose interests a contract is concluded for the provision of services for transmission of electrical energy) for the condition and maintenance of electrical installations.

Thus, from the analysis of legal acts it follows that the boundary of the balance sheet divides engineering networks on the basis of ownership or other legal possession, and the boundary of operational responsibility implies a dividing line on the basis of laying the burden of maintaining engineering communications.

Ratio

Based on the foregoing, when concluding resource supply agreements for an apartment building, the boundary of the balance sheet will separate engineering networks that are the common property of the owners of premises in an apartment building (Article 36 of the LC RF) from other engineering networks. In this regard, it is important to understand what relates to common property.

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

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

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

Thus, the boundary of the balance sheet at the conclusion of resource supply contracts for an apartment building is always the outer boundary of the wall of such a house<1>, and the boundary of operational responsibility is not set imperatively - it can:

be established by agreement of the parties;
coincide with the junction of the collective (common house) metering device with the corresponding engineering network included in the apartment building;
coincide with the boundary of the balance sheet (for the owners of an apartment building, it is the outer wall of the house).

<1>We emphasize that it is the outer boundary of the wall of the house, and not the boundaries of the adjoining land plot.

So, specifying clause 8 of the Rules for the Maintenance of Common Property, one can refer to clause 14 of the Rules for the Maintenance of Common Property, which states: if there is agreement, the delimitation can be established along the well (or chamber) to which devices and structures are connected to connect the subscriber to the public water supply or sewer network. With regard to heating networks, it is possible to set the boundary of operational responsibility on the wall of the thermal chamber at the subscriber's input or according to the first disconnecting devices (Resolution of the FAS SKO dated 05.28.2009 N A53-9063 / 2008-C2-41). Meanwhile, all of these options must be agreed in the act of delimitation of operational responsibility.

Operational Responsibility Delimitation Act

An analysis of the legislation (the main provisions are contained in paragraph 8 of the Rules for the maintenance of common property, paragraph 14 of the Rules for the water supply, paragraph 114 of the Rules for the electric power industry) and judicial practice allows us to conclude that if there is no agreement between the managing organization and the North Ossetia on the issue of determining the boundary of the operational responsibility, the latter is determined by the boundary of the balance sheet, which is the outer wall of an apartment building<2>(in the absence of a common house metering device).

<2>Decrees of the Federal Antimonopoly Service of the Central Organ of February 17, 2009 N F10-12 / 09, FAS VVO of March 24, 2009 N A29-5292 / 2008.

The problem is the question of the need to sign this act. By virtue of Art. 543 of the Civil Code of the Russian Federation, the essential terms of the energy supply contract, without which the contract is void, include the condition on ensuring the maintenance and safety of the operation of networks, instruments and equipment. When agreeing on the boundaries of operational responsibility, the parties provide for the maintenance and operation of engineering networks and equipment. The operational responsibility delimitation act is a technical document, a form that reflects such an agreement. In addition, all the regulatory documents discussed above also require the signing of this act when concluding a resource supply agreement.

However, the act of delimitation of operational responsibility takes place when an agreement is reached between the RCO and the subscriber on this issue, and if this is not reached, the boundaries of responsibility are determined by the boundaries of the balance sheet. Therefore, the act of delimitation of operational responsibility may not always be present. The same is evidenced by the analysis of judicial practice in disputes about the terms of contracts that arise during their conclusion: courts sometimes even exclude annexes containing this act from the text of the contract.<3>.

<3>Decree of the FAS SKO dated May 28, 2009 N A53-9063 / 2008-C2-41.

Disputes arising in connection with the establishment of the boundaries of operational responsibility

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

In turn, the specified property may include only intra-house life support systems ending with the outer boundary of the wall of the house and intended to serve more than one room in this house. Therefore, if the managing organization is offered to take the burden of responsibility for engineering networks located outside the apartment building or serving more than one apartment building (regardless of location), then it can be safely refused and insist on establishing the boundaries of operational responsibility along the outer wall of the house.

So, for example, the Sixth Arbitration Court of Appeal refused the developer organization's demand to compel the managing organization to accept for maintenance and maintenance the external engineering networks of power supply, storm sewerage, and water supply sewerage. The fact is that at the court session it was established that these communications are intended to serve more than one residential and (or) non-residential premises in several apartment buildings, and not in one apartment building and, therefore, do not meet all the criteria established by law for the common property of an apartment building at home (Decree of 17.07.2009 N 06AP-2631/2009). And vice versa, the managing organization was unable to prove the illegality of including in the composition of municipal property heating pipelines and hot water transit pipelines passing through the basements of houses, a hot water boiler in the basement of the house and other transit pipelines (and further leasing them to RSO). Despite the fact that these objects are located in the basement of an apartment building, they are not common property, since they serve more than one apartment building, and also since the outer boundary of the wall of the house cannot be the boundary of transit heat networks (Resolution of the FAS UO dated 05/18/2009 N F09 -2962/09-C6).

In addition, as practice shows, problems in concluding a contract and delimiting operational responsibility arise when the balance holder of a section of engineering networks from the wall of an apartment building to networks that are on the balance sheet of the RSO is not known. These plots are often ownerless, but necessary to supply the house with resources (and are located on the adjacent land, which is part of the common property). As a rule, RNOs try to place the burden of maintaining such network sections on the managing organization and owners of premises in an apartment building, arguing that the maintenance of these sections is not included in the tariffs. Meanwhile, even in this situation, there are no legal grounds for delimiting operational responsibility for tie-in into engineering networks, which are on the balance sheet of the RSO. Let us make a reservation once again that this provision is valid in the absence of an agreement between the parties expressed in the act, since, by virtue of paragraph 1 of Art. 421 of the Civil Code of the Russian Federation, legal entities are free to conclude an agreement. According to paragraph 4 of the named article, the terms of the contract are determined at the discretion of the parties. When resolving these disputes, the courts note that the RSO has the right to apply to the regulatory body with documents confirming the costs of paying for services for the transfer of a resource over networks that have not been put into operation, in order to account for and compensate them in the subsequent period of tariff regulation (Resolutions of the Federal Antimonopoly Service TSB dated March 24, 2009 N A29-5292/2008, dated September 23, 2008 N A11-11702/2007-K1-6/37).

M.A. Purgina

legal adviser

NP "Nizhny Novgorod association of HOA"

Any building, without a certain internal filling and all those housing and communal benefits, without which we now cannot imagine our life, in itself is something like an empty box. It does not matter whether it is an apartment building or a private mansion, a manufacturing enterprise or an office space - they all need certain services: heating, electricity, water.

At this stage, special organizations are engaged in providing the building with these benefits: UK (management companies), HOA (Association of homeowners) and other commercial organizations. They are responsible for entering into agreements on the supply of certain services with resource companies on behalf of the owners of square meters of this house. It should be noted that resources do not appear out of nowhere, but come through pipes, wires, etc. Everything seems to be simple, but when these supply lines break down, the question arises of who should be responsible and repair them.

Act of delimitation and responsibility

According to the norms of civil law of the Russian Federation, it is possible to determine responsibility for the preservation and operation of the supply lines for housing and communal services only after reading the information contained in the act of distinguishing between balance sheet ownership and operational responsibility. In order to understand this legal concept, you first need to uncover auxiliary terms:

Boundary Rules

With modern technologies, finding the approximate content of a particular normative act is not a problem. The relevant thematic sites are filled with samples of the necessary documents.

Table of engineering systems and responsibilities of the parties

Name of engineering systems	System Settings	Description of the operational responsibility of the Lessor	Description of the Tenant's operational responsibility
Forced ventilation	Min1600- max 5700 m3/h	Until the outlet of the air ducts of the supply units from the ventilation shafts and from the walls of the building to the Tenant's premises
Exhaust ventilation	Min 1500- max 5500 m3/h	Until the exit of the air ducts of the exhaust units from the ventilation shafts and from the walls of the building to the Tenant's premises	Ventilation equipment and air ducts in the Tenant's premises
Power supply system	Dedicated power Rust.- 55 kW	To the cable lugs of the outgoing lines at the points of their connection to the load block of the floor switchboard	From the cable lugs of the outgoing lines at the points of their connection to the load block of the floor switchboard
Cold water system, etc.

After the act of delimitation of borders is concluded, a lease agreement for the relevant housing and communal services must be concluded between the parties. The owner of the dwelling will be assigned a personal financial account, according to which he will pay utility bills. The resource supply company, in turn, assumes the obligation to supply the benefits necessary for modern life. And if there is a breakdown in the communication paths, then the party specified in the act of distinguishing between balance sheet ownership and operational responsibility will bear responsibility for its well-being.

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

Executors of utility services from different regions of the country apply to our company for legal assistance in case of disputes with RSO in the process of concluding and executing contracts. Most of the disputes arise regarding the definition of the points of supply of the corresponding resource and the boundaries of operational responsibility under the contract. In order to reduce losses on the networks, the RNO seek to establish a delivery point as far as possible from the end consumer, which is absolutely unprofitable for the other party to the contract, since in addition to losses, the manager of the MKD also has the burden of maintaining such engineering networks.

Using the accumulated experience in such cases, we will consider a way to legally determine the points of delivery and the boundaries of the operational responsibility of the parties. Thanks to a recent ruling by the RF Armed Forces, this has also become possible with respect to already concluded agreements.

Concepts and regulation

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

in the Rules for the organization of heat supply (approved by Decree of the Government of the Russian Federation of 08.08.2012 No. 808);
in the Rules for hot water supply (approved by Decree of the Government of the Russian Federation of July 29, 2013 No. 642);
in the Rules for cold water supply and sanitation (approved by Decree of the Government of the Russian Federation of July 29, 2013 No. 644);
in the Rules for the supply of gas to meet the domestic needs of citizens (approved by Decree of the Government of the Russian Federation of July 21, 2008 No. 549);
in the Basic Provisions for the Functioning of Retail Electricity Markets (approved by Decree of the Government of the Russian Federation of 04.05.2012 No. 442).

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

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

Balance sheet property boundary- the boundary of the division of networks on the basis of ownership.

Limit of operational responsibility- the boundary of the division of networks on the basis of the imposition of the burden of maintenance, which runs along the boundary of the balance sheet, unless the parties to the contract agreed otherwise.

Change of boundaries with the consent of the owners

The provisions of the Housing Code of the Russian Federation, the Rules for the Provision of Public Services, as well as the Rules for the Maintenance of Common Property regulate the relationship under a resource supply agreement, since it is concluded by the contractor of public services with the RSO in order to provide public services to citizens. In accordance with the Housing Code of the Russian Federation, under an MKD management agreement, the contractor is responsible to the owners for the maintenance of common property in the house.

The composition of the common property of the owners of premises in the MKD includes, among other things, engineering communications located inside the house (paragraphs 5 - 7 of the Rules for the Maintenance of Common Property) or outside it on a land plot that is part of the common property in the MKD (paragraphs "g" 2 of the Rules for the maintenance of common property), and intended for servicing this house.

In accordance with paragraph 7 of the Rules for the maintenance of common property, the OPU is installed on the border of the networks that are part of the common property of the owners of premises in the MKD, and refers to the common property.

According to paragraph 8 of the Rules for the Maintenance of Common Property, the outer boundary of the networks that are part of the common property is the outer boundary of the MKD wall, and the boundary of operational responsibility, if there is an OPU of the corresponding communal resource, is the junction of the meter with the corresponding engineering network of the MKD. By agreement of the owners of the premises with the utility service provider or RSO, a different limit of operational responsibility may be established.

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

The place of installation of the OPU is the boundary of the networks that are part of the common property in the MKD.

There are differences regarding the outer border of the gas supply networks: this is the junction of the first locking device with the external gas distribution network.

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

Acts of demarcation

The boundaries of operational responsibility and balance sheet ownership are established by the parties at the conclusion of the contract and determine which sections of the engineering equipment will be serviced by the utility service provider. We recommend that contractors, in order to avoid disputes in the process of executing the contract with the RNO, sign these acts at the stage of concluding the contract. In doing so, the following must be taken into account.

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

In accordance with Decree of the Government of the Russian Federation of August 13, 2006 No. 491, LSGs must determine the boundaries of the land plot related to the common property of the house for each MKD. The boundaries of the land plot, which is part of the common property in the MKD, determine the boundaries of the balance sheet ownership and operational responsibility, which should be recorded in the relevant acts with the RSO. Therefore, if the boundaries of the land plot are larger than the area of the MKD, the maintenance of utilities passing through this land plot is assigned to the management company on the basis of a management agreement.

If the state cadastral registration has not been carried out in relation to the land plot, the boundary of the balance belonging of the networks is the outer wall of the MKD.

Ownerless networks

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

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

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

It is illegal to impose on consumers and utility service providers the loss of utility resources in ownerless sections of networks. Such a conclusion regarding power losses was made in the Decision of the Supreme Arbitration Court of the Russian Federation dated October 28, 2013 No. VAC-10864/13.

We set the boundaries of engineering networks according to the law

When concluding an agreement with RSO

The ideal option for the MKD manager is to establish the legal boundaries of operational responsibility when concluding an agreement with the RSO. But how can this be achieved if the RNO insists on other lines of responsibility? The manager should not be in a hurry to sign the operational responsibility delimitation acts on illegal terms.

In accordance with civil law, a contract is considered concluded if an agreement is reached between the parties on all the essential terms of the contract. The legislator also referred the condition on the boundary of operational responsibility to the essential conditions of the energy supply agreement. This condition is agreed by the parties by signing the act of delimitation of operational responsibility.

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

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

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

If the parties did not apply to the court for settlement of disagreements when concluding the resource supply agreement and the protocol of disagreements remained unsigned by the RSO, in the event of disputes over the volume of supplied resources and the limits of responsibility, the contract will not be recognized by the court as not concluded, since the condition on the limits of operational responsibility can be regulated by law.

In Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 3409/10 dated 07.09.2010, the court concluded that the absence of an act of delimitation of balance sheet ownership agreed by the parties cannot indicate that the parties have not concluded an agreement. In the absence of an act of delimitation of the operational responsibility of the parties, the boundary of operational responsibility is established on the basis of balance sheet ownership, and the latter is determined on the basis of ownership.

If the network boundaries are established in the agreement with the RSO not according to the law

As a rule, the contract is concluded for a certain period and is considered prolonged on the same terms, if neither of the parties declares within a certain period of time its intention to conclude the contract on new terms.

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

Recognition by the court of the terms of the agreement on the establishment of network boundaries as null and void

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

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

In a new consideration of the case, the court of first instance established a contradiction between the act of delimiting balance sheet ownership and operational responsibility and imperative norms of law, as well as the absence of a decision by the owners to classify the disputed section of engineering networks as common property. The agreement with the RSO regarding the delimitation of operational responsibility was declared null and void, the RSO was denied the recovery of losses from the Management Company in the disputed section of the networks.

Arbitration courts, when considering such disputes, already use this definition of the Supreme Court and make decisions on imposing on the RSO the burden of maintaining and maintaining engineering networks outside the common property of the owners of premises in MKD, as well as the obligation to pay for losses on such networks. For example, in the decisions of the Eleventh Arbitration Court of Appeal dated April 20, 2016 in case No. A72-9399 / 2015, the Fifteenth Arbitration Court of Appeal dated April 5, 2016 in case No. A53-23569 / 2014, the decision of the Arbitration Court of the Ulyanovsk Region dated January 27, 2016 in case No. A72-9399/2015, when adopting judicial acts, the arbitrators referred to the above-mentioned definition of the Supreme Court of the Russian Federation.

The points of supply of communal resources (regardless of the presence or absence of a PPU) must be located on the border of the balance sheet, which runs along the border of the common property of the owners of the premises in the MKD.

The boundary of operational responsibility runs along the boundary of the balance sheet ownership, unless a different boundary is agreed by the parties to the resource supply agreement in the relevant act and if there is no decision of the owners to move the boundary.

The easiest way to agree on the boundaries of engineering networks is in the process of concluding an agreement, including in court.

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

Issued at the claim of the heat supply organization to the management company for the recovery of losses in the network section from the place of installation of the control point (the point of entry of the pipeline into the MKD) to the boundary of the balance sheet, defined in the act of demarcation as the point of output (tie-in) of the pipeline with heat carrier from the central heating station.