- Legal framework for issues of payment for utilities
- Clarification of relations with utilities
- Application to the prosecutor’s office
- What you need to do before buying an apartment to avoid such disputes
Own apartment is the cherished dream of a huge number of people. But after the necessary amount was finally collected, the purchase and sale agreement was signed and all the documents of title were received, very often new problems arise before home owners. One of the most common of these is the debt of the old owner for utilities, which the management company or utilities are trying to “hang” on the new owner of the property. Let’s see how you can get rid of them.
Legal framework for issues of payment for utilities
Article 153 of the Housing Code of the Russian Federation states that owners of real estate are obliged to pay for utilities from the moment of registration of ownership or tenants from the moment of concluding a lease. That is, the debt of the old owner of the premises cannot be transferred to the new owners, unless otherwise provided by the contract.
But there is one exception. According to article 158 of the RF LC, when buying real estate, the obligations of the old owner to pay the debt for major repairs are transferred to the new owner.
Often in sales contracts there is a clause according to which all the seller’s debts to utilities are transferred to the buyer. But such a condition is contrary to Russian law, because Article 391 of the Civil Code of the Russian Federation says that the debtor can transfer his debt to another person only with the consent of the creditor, otherwise the contract is considered null and void. This means that if the utility does not agree to transfer the debt, the buyer is not obliged to pay the seller’s debt, even if there is a corresponding clause in the contract..
Clarification of relations with utilities
Despite all the above norms, utilities often try to “hang” old debts on the new owner. In such cases, lawyers advise new apartment owners to first try to resolve the issue with the operating organizations in a peaceful way – to show documents of title and receipts for payment for services at the time of purchasing real estate, and explain, referring to the already mentioned articles, that he has the right to reissue personal accounts and renegotiate contracts for service in your own name, and then pay only for services consumed after the ownership of the apartment has been formalized.
It is also necessary to write and send an official letter to all operating organizations, which will set out the same position. The letter must include photocopies of the documents listed above. You can bring it in person, but at the same time make sure that the office staff put a stamp, date and signature on the second copy of the letter (it remains with the buyer).
Application to the prosecutor’s office
If the operating organizations do not respond to the arguments of the new owner, he can write a statement to the prosecutor’s office, in which it is necessary to describe the current situation, attach documents of title and letters sent to the operating organization, carefully substantiate his position and, qualifying the actions of the public utilities as extortion, ask them to accept the appropriate measures.
According to the law, within 30 days from the date of registration of the application, a response should come about the results of its consideration.
Even justified written refusals to pay debts of the old owners and appeals to the prosecutor’s office cannot in some cases affect the management companies and utilities. Then the new owner has only one thing to do – to prepare for the trial..
It is possible that the management company or utilities will file a claim in court for debt collection. In this case, the owner of the real estate must defend his position during the proceedings, referring to the above articles of the Housing Code, letters that were previously sent to the operating organizations, confirming that the new owner notified them of the date from which he registered ownership of the real estate, and judicial practice in similar cases.
For example, in 2010, the City Court of St. Petersburg issued a cassation ruling, which stated that the debt on utility bills should be collected from the moment ownership of housing arises..
The Tomsk Regional Court adheres to the same opinion, which in 2014 made a decision, which clearly states that it is impossible to force the new owners of the premises to pay the debts of the old owners..
But, unfortunately, in some cases, the court does not take the side of the property owners and makes decisions in favor of the operating organizations on debt collection. In such cases, lawyers advise to immediately file an objection to the magistrate and demand the cancellation of the order to collect the debt.
What you need to do before buying an apartment to avoid such disputes
Before purchasing an apartment, it is necessary to demand from the seller a certificate from all operating organizations, indicating that there is no debt .
It should be insisted on the inclusion of a clause in the sale and purchase agreement that the seller guarantees that he does not have any debt to the utilities, and if the buyer discovers the opposite, he has the right to terminate the agreement and demand from the seller to return the money paid for the property.
It is also worth adding to the contract a clause according to which the act of acceptance and transfer of the apartment can be signed only after the readings of all meters are entered (and previously certified by the service organizations).