Do you own residential real estate? Congratulations! But the first thing to remember in this regard is enshrined in Article 13 of the Constitution of Ukraine “Ownership obliges. Property should not be used to the detriment of people and society.” It is this phrase – “property obligates” that judges pronounce every time when they consider cases of debt collection for housing and communal services. And persuasions about lack of funds, not living at this address, etc., do not help in any way.
With the help of the lawyers of the “Repeshko and Partners” Bar Association, we will consider the issue of debt collection for communal services, which include: heating, hot and cold water, drainage, household gas, energy supply and others. The first thing to keep in mind when it comes to utility bills is the statute of limitations, which is how long you can collect your debt. According to Article 257 of the Civil Code of Ukraine, the general limitation period is three years. This means that it is possible to collect arrears for communal services only for the last 36 months. Recovery for a longer period is possible only if there is a strong justification for the omission of the statute of limitations on the part of the communal services. A reference to the fact that the lawyer was on vacation or was not at the company at all is not valid. But usually, in addition to the main arrears for communal services, the relevant services charge inflation charges, penalties, fines. The main thing to know is the existence of a shortened statute of limitations. The reduced statute of limitations of one year applies to claims: for the collection of a penalty (fine, penalty). That is, the specified charges are possible only for the last 12 months.
The next thing that shocks citizens during the collection of debts for communal services is surprise. Citizens sit and wait to be summoned to court for debts for services consumed, and already there they will tell about the hot water, which is not hot at all, and about how the yard is not cleaned at all, and so on. And suddenly they receive … a court order, where it is written in black and white that the court has already considered everything, such a large amount of debt is due for collection from you, get it and pay! This is where many questions arise: what kind of order is this, why I was not summoned to court, what to do now, and others.
Injunctive proceedings are an independent and simplified type of court proceedings in civil proceedings in the consideration of certain categories of cases, in which the judge, in the cases established by law, based on the application of the person who has the right to claim, without a court session and summons of the debt collector and the debtor, issues a court order based on the documents attached to the application order, which is a special form of court decision. Pursuant to Article 161 of the Civil Procedure Code of Ukraine, a court order may be issued in the event that a demand for debt collection for payment of housing and communal services, electronic communication services, television and radio broadcasting services, taking into account the inflation index and 3 percent per annum accrued by the applicant for the amount debts
Therefore, according to the current legislation, utility companies can apply to the court under a simplified procedure. This is possible if the stated requirements relate to debt for the provided housing and communal services, telecommunications services, television and radio broadcasting services. The basis for issuing a court order for the amount of debt will be relevant contracts for the provision of such services, other written evidence confirming the actual provision and receipt of such services. In addition, the applicant, submitting a package of documents to the court, must prove his claims and provide appropriate calculations on the occurrence of debt, including monthly, as well as the application of tariffs for relevant services. At the same time, the court order is issued not only for the amount of debt, but also for the collection of the inflation index and three percent per annum calculated on the amount of debt.
Another nuance that has a very significant effect on the amount of arrears for communal services is the persons who are registered in the residential premises (house, apartment). Some communal services, in the absence of meters, are calculated according to the number of registered persons. Communal services take data from the register of the territorial community, so an important note is that if relatives who have died long ago are registered in the residential premises, remove them from the registration. If the family members have not lived in the premises for a long time, do not intend to return to it and do not provide funds for the payment of utility services, they can be removed from registration in the specified premises.
Article 405 of the Civil Code of Ukraine stipulates that a family member of the home owner loses the right to use this home if the family member is absent without valid reasons for more than one year, unless otherwise established by agreement between him and the home owner or by law. Please note: this rule does not apply to owners and co-owners of residential premises, because tomorrow, according to the law, they can once again obtain registration of residence in their own home. For premises that are still owned by territorial communities (not privatized), this term, in accordance with the Housing Code, is six months. Therefore, do not be lazy to do some things in a timely manner, so as not to pay later, as they say, for “dead souls”.
The court considers an application for the issuance of a court order within five days from the day of its receipt, and if the debtor is an individual who does not have the status of an entrepreneur, the debtor is indicated in the application for the issuance of a court order, within five days from the day of receipt by the court in the manner prescribed by parts five and six of Article 165 of the Code of Civil Procedure of Ukraine, information about the place of residence (residence) of a natural person — the debtor, registered in accordance with the procedure established by law. The review is conducted without a court hearing and notification of the applicant and the debtor. Based on the results of consideration of the application for the issuance of a court order, the court shall issue a court order or pass a decision on refusal to issue a court order. In addition, the court order itself is an executive document that is transferred to the relevant enforcement service for enforcement.
It is also important to remember that a court order is not subject to appeal, but it can be canceled by the local court that issued it (that is, an application to cancel the court order can be submitted to the local court). Therefore, after the debtor receives a copy of the court order, he has only fifteen days to file an application for its cancellation. This is extremely important, because it is during this period that you need to submit an application and relevant documents to the court that substantiate the fact that you are actually owed a smaller amount: payment receipts that for some reason were not taken into account by the representatives of communal services, your own calculations, an application for the application of the deadline statute of limitations, etc.
We would like to note that, usually, communal services declare for collection the entire amount of debt that is accounted for in their database. This is done because the debt exists and something needs to be done about it. In its turn, according to custom, the full court satisfies the summons with the specified amount of the debt. And already at the request of the citizen-debtor to cancel the court order and apply the statute of limitations, the court reduces the amount of the debt, which in turn gives the utility company the full right to write it off as hopeless and not collect from the debtor, because the court refused to satisfy it.
The application for cancellation of the court order shall be submitted to the judge who issued the court order no later than the next day. The debtor’s application for annulment of the court order submitted after the expiration of the period established by the first part of Article 170 of the Civil Procedure Code of Ukraine shall be returned if the court, based on the application of the person who submitted it, does not find grounds for renewing the period for submitting this application (Article 171 of the Civil Procedure Code of Ukraine of the Procedural Code of Ukraine).
If there is no reason to return the application for the cancellation of the court order, the judge, no later than two days after its submission, issues a decision on the cancellation of the court order, in which he explains to the applicant (collector) his right to apply to the court with the same requirements in the order of simplified legal proceedings . In the decision to cancel the court order, the court, at the request of the debtor, resolves the issue of reversing the execution of the court order in accordance with the procedure established by Article 444 of the Code of Civil Procedure.
Utility companies are actively using this simplified system of obtaining a court decision, which is why lawsuits for the collection of debt for utility services have recently become exotic.
Another important point regarding the realities of today’s life under martial law. The Cabinet of Ministers of Ukraine by resolution of March 5, 2022 “Some issues of payment for housing and communal services during martial law” prohibited:
- to charge and collect penalties (fines, penalties), inflation charges, annual interest charged on debts incurred due to untimely and/or incomplete payment by the population for housing and communal services;
- terminate/stop the provision of housing and communal services to the population in case of non-payment or incomplete payment.
This applies exclusively to territorial communities located in the territories where hostilities are taking place (territories of possible hostilities, active hostilities, active hostilities in which state electronic information resources function) or temporarily occupied by the Russian Federation, in accordance with the list approved by the order Ministry of Reintegration of Temporarily Occupied Territories. This list is currently approved by Order No. 309 of the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine dated 22.12.2022. Such a ban will be in effect until the date of termination of hostilities, end of hostilities, end of temporary occupation.
In turn, martial law does not exempt citizens of Ukraine from paying for utility services, but penalties and fines will not be charged. Also, in the event of non-payment or incomplete payment, the relevant services will not be turned off by the citizens, and the service will continue to be provided in the future. How the issue will be resolved after the end of martial law is not yet known, but it will be precisely in accordance with the legislation that will be in effect at that time.
What to do if the residential premises are damaged, destroyed, cannot be used for living in connection with military actions? We would like to note that no one submits the automatically specified information to the relevant utility services, except in cases when the entire building is disconnected from the provision of services in connection with an emergency situation. Therefore, in the event of the occurrence of the specified event with housing, we strongly advise you to make copies of the relevant acts of damage, a certificate of entry into the unified register of pre-trial investigations into the facts of hitting enemy missiles, etc., and submit with the corresponding application to each utility service, and with a mark on the second a copy of the application for acceptance, or by a postal operator with a return message.
And for the last. What should be done by those who, worrying about their lives, have left their own living quarters for a considerable period of time, including as an internally displaced person, and do not want to receive endless bills? Unfortunately, the issue here may concern those utility services that depend on the actual residence of a person in the premises in the absence of a meter. It can be water supply, drainage, gas supply, cable TV services, Internet. The most valuable service – the provision of heating does not fall under this situation. The main thing to do is to inform the relevant communal services that you are not currently living in the apartment, and at the same time provide relevant documents that would confirm this fact. For example, a certificate of registration of an internally displaced person in another settlement, or an act drawn up by a deputy of the relevant community about your residence in another region.
We would like to remind you that if the apartment has meters installed for some services, the transfer of data from the specified accounting devices is mandatory. Otherwise, the utilities will calculate according to the “average consumption” for the area and you will receive a bill regardless of whether you consumed any amount or not at all.
And remember the main thing – ownership obliges!
