Should displaced people pay for utilities in abandoned homes?

Given the situation that has developed in recent years in the east of our country, as well as numerous requests from citizens for legal advice on issues of payment for utility services in the ATO zone and in the temporarily occupied territory, lawyers from the Chernihiv Public Committee for the Protection of Human Rights and the project “Legal Protection of the Population Affected by the Conflict” provide their comments.

Existing regulatory framework

According to the requirements of the current legislation of Ukraine, housing and communal services must be provided to consumers exclusively on the basis of contracts, which, in turn, must meet the requirements of the Model Contracts approved by the resolutions of the Cabinet of Ministers of Ukraine, namely:

– PKMU dated 20.05.2009 No. 529 “On approval of the Model Contract for the provision of services for the maintenance of buildings and structures and adjacent territories”;

– PKMU dated 21.07.2005 No. 630 “On approval of the Rules for the provision of services for centralized heating, supply of cold and hot water and drainage and a model contract for the provision of services for centralized heating, supply of cold and hot water and drainage”.

According to the Law of Ukraine dated 24.06.2004 No. 1875-IV “On Housing and Communal Services”, it is assumed that the important terms of the contract for the provision of housing and communal services are, among others: the naming of the parties, the procedure for payment for the used housing and communal services, the procedure for recalculating the amount of payment for housing and communal services in the event of their non-provision or incomplete provision, a decrease in their quality, the rights and obligations of the parties.

What will the displaced persons have to pay for?

In the event that payment for the use of water, electricity, gas, heating was made according to the indicators of the metering devices installed in the apartments (the so-called “meters”), people who left their homes in the ATO zone should not have any problems – after all, after the owners left, they remained on the same indicators.

In the event that metering devices were not installed in the apartments, payment should be made according to the indicators of the house’s water or heat metering device (in accordance with the PCMU dated 21.07.2005 No. 630 “On approval of the Rules for the provision of services for centralized heating, supply of cold and hot water and drainage and a standard contract for the provision of services for centralized heating, supply of cold and hot water and drainage”); or according to the norms approved by local government bodies (if metering devices are not installed in the buildings).

At the same time, it is worth paying attention to the requirements of Article 20 of the Law of Ukraine dated 06/24/2004 No. 1875-IV “On Housing and Communal Services”, according to which the consumer has the right to non-payment of the cost of housing and communal services for the period of temporary absence of the consumer and (or) members of his family with appropriate documentation, as well as for the period of actual absence of housing and communal services, determined by the contract in the manner established by the Cabinet of Ministers of Ukraine.

This Law also establishes that

communal services – the result of economic activity aimed at satisfying the needs of an individual or legal entity in providing cold and hot water, sewage, gas and electricity supply, heating, as well as the removal of household waste in the manner established by law

.

Thus, displaced persons can exercise this right subject to a motivated written application to the executor with the obligatory provision of a copy of the certificate of registration of an internally displaced person, which contains information about the date of movement from the temporarily occupied territory (area of ​​​​the anti-terrorist operation) and information about residence (stay) in the controlled territory. Thus, with the help of this certificate, it is possible to prove a specific and separate period of temporary absence of the consumer and (or) members of his family. Also, it will not be superfluous to add to such an application relevant certificates about work, treatment, education, military service at the place of actual stay.

It is worth noting that such a scheme can be applied only if the executors – organizations that provide housing and communal services, are in the government-controlled part of our state. Otherwise, when addressing such applications to executors located in temporarily occupied territory (uncontrolled areas of the anti-terrorist operation), the consequences may be unpredictable. This should be emphasized.

In view of the above, it is interesting that, citing problems with postal services, the Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine in 2014 advised citizens to send relevant applications to the executors by e-mail and fax.

As for payment for services for the maintenance of buildings and structures and adjacent territories, apartment owners should theoretically pay for them if these services are provided by a service organization for the house. Services for the maintenance of buildings and structures and adjacent territories are provided to consumers regardless of their presence in the house. Amounts to be paid are accrued in accordance with the PCMU dated 01.06.2011 No. 869 “On approval of the Procedure for forming tariffs for services for the maintenance of buildings and structures and adjacent territories and a standard contract for the provision of services for the maintenance of buildings and structures and adjacent territories”.

To pay for these services to consumers who have temporarily left their homes, according to the Ministry of Regional Development, Construction and Housing and Communal Services of Ukraine, it is necessary to find out the current account of the contractor (on the company’s website or by phone) and transfer funds via a bank or the Internet. In this case, it is advisable to keep receipts.

At the same time, it is worth paying attention to the presence of so-called force majeure circumstances in the Standard Contract for the Provision of Services for the Maintenance of Buildings and Structures and Adjacent Territories. Thus, in paragraph 19 it is stated that “the parties are released from liability under this agreement in the event of force majeure, which makes it impossible to provide and pay for services in accordance with the terms of this agreement” – PCMU dated 20.05.2009 No. 529 “On approval of the Model Agreement on the provision of services for the maintenance of buildings and structures and adjacent territories”.

In addition, it is worth noting that in order to resolve many issues with the payment of housing and communal services, the Verkhovna Rada of Ukraine adopted the Law of Ukraine dated 02.09.2014 No. 1669-VII “On temporary measures for the period of the anti-terrorist operation”. According to Article 8 of this Law, a moratorium on the accrual of penalties for untimely payment for communal services has been introduced. In particular, it is provided for the cancellation of penalties for untimely payments for water supply, gas, electricity and heat, sewage, maintenance and operation of housing, etc. This rule is valid from 14.04.2014 until the end of the ATO. And in the event that the money is still collected as a penalty in the period from 14.04.2014 until the end of the ATO, it must be included in future payments.

The project “Legal Protection of the Population Affected by the Conflict” is implemented by the Danish Refugee Council in partnership with the Chernihiv Public Committee for the Protection of Human Rights with financial support from the Office of Emergency Assistance of the United States Agency for International Development (OFDA/USAID).

Contacts of the project reception offices in the regions:

Chernihiv

Goncha St. 57, 14000,

Hotline: (0462) 612-532

E-mail: protection.ua@gmail.com

Sumy

Belinsky St., 2, office 3

Hotline: 095-939-11-11

Poltava St.

Matrosova, 4, office 3

Hotline numbers: 050-274-52-83; 099-658-56-10

E-mail: nastyashlyakhtina@gmail.com

Ivano-Frankivsk

2 Garkushi St., 4th floor, office 408

Hotline: 095-310-61-51

E-mail: o.fomichov.if@gmail.com

Zhytomyr city

3 Troyanivska st.

Hotline: 050-465-98-18