Will housing be taken away due to non-payment for the use of housing and communal services

On February 24, 2022, no one, even in their wildest dreams, could imagine that hostilities on the territory of Ukraine would last so long. For the third year now, the country lives in conditions of uncertainty, active hostilities, occupation of territories and other horrors that fully accompany wars. But even now no one can say when the hostilities will end – it will be in a few months or a few years. No one even dares to predict it officially, as famous people once did, noting about “two or three weeks”.

Many Ukrainians do not pay utility bills, hoping that all issues will be resolved after the end of hostilities. The consequences of such a decision were commented on by the lawyers of the “Repeshko and Partners” Bar Association at the request of “FAKT” IA.

Precisely at the beginning of hostilities, understanding all the confusion and uncertainty, the Cabinet of Ministers of Ukraine established by resolution No. 206 that from March 5, 2022 until the termination or cancellation of martial law in Ukraine, the charging and collection of fines (fines, penalties), inflation charges, interest was prohibited per annum, accrued on the debt incurred due to untimely and/or incomplete payment by the population of fees for housing and communal services; and termination/suspension of the provision of housing and communal services to the population in case of non-payment or payment in full.

This decision was completely fair and guaranteed the population at least some understanding of the current situation, when in some regions of the country, citizens did not know whether to stay at home, or to evacuate abroad, or to leave the country altogether. We understand that this resolution was probably also adopted on the basis of the term of continuation of hostilities “two or three weeks”. However, two years have passed and a third has passed. The hostilities not only did not stop, but also gained momentum in some territories. Debts for communal services of the population also grew in turn. And if the existence of debts somewhere in the Kherson or Donetsk regions was completely logical and justified, then non-payment for communal services in other regions of the country became an unpleasant surprise for the authorities. The population in the territories, which live a completely peaceful life, also stopped paying for communal services. At the same time, the load of citizens on some territories, on the contrary, increased – the cost of renting housing in Lviv or Zakarpattia region broke all records.

On April 27, 2023, a new rule was added to this resolution, which established that until the termination or cancellation of martial law in Ukraine, the collection of debt for housing and communal services, formed after February 24, 2022, from the date of commencement to the date of the end of hostilities or temporary occupation territories included in the list of territories on which hostilities are (were) being waged or temporarily occupied by the Russian Federation, approved by the order of the Ministry on Reintegration of Temporarily Occupied Territories, consumers and/or their family members who left their place of residence and provided utility services to the contractor, to the manager of an apartment building, to another person authorized by the co-owners, in paper or electronic form, a certificate of registration of an internally displaced person or other documents confirming their absence from residential and/or non-residential premises, buildings in which they are consumers on the basis of concluded contracts (from the place temporary residence in a foreign country, work, treatment, training, military service, etc.). At the same time, as we can see, debt collection was prohibited, not accrual.

However, on December 29, 2023, by its Resolution No. 1405, the Cabinet of Ministers canceled the ban on the termination of the provision of housing and communal services to consumers who have debts. The moratorium on disconnection is maintained only for residents of territories where hostilities are taking place and temporarily occupied territories. It is also prohibited to suspend service if the consumer’s home is damaged by hostilities, but the supplier must be notified. According to Decree No. 1405, if the consumer does not live at his address for more than 30 days, he can submit an application and documents confirming this to the service provider. These can be certificates from places of temporary residence, work, study, treatment, military service or serving a sentence. In this case, invoices will not be issued.

Thus, in case of non-payment for housing and communal services, the providers of these services can charge and collect fines, penalties, inflation charges and interest on the debt that arose due to late or incomplete payment to all persons, except for those specified in the resolution of the CMU.

According to the well-known site deepstatemap, almost 19% of the territory of Ukraine is currently under occupation, a significant number of territories are near the front, or are located in the immediate vicinity of the border with the Russian Federation, and therefore are constantly under fire and are unnatural for living. At the same time, nothing has changed in terms of the calculation and collection of debts for housing and communal services for the majority of the country’s citizens, regardless of the continuation of martial law, mobilization processes, difficulties in doing business, or other economic processes that occur in the country.

At the same time, as experts note, the most fully paid for communal services are those households that receive a subsidy from the state, and therefore have passed the inspection and are really the population segments that need state assistance. At the same time, debts are growing precisely among those who are not recipients of subsidies, but for the state, they are included in the category of solvent population. Some citizens note that almost an entire multi-apartment building does not pay for utilities – people are waiting to see what will happen next: whether the city will be occupied or not, there are risks of a missile being hit, or whether the war will end and the state will write off its debts. Such an approach to payment discipline cools even the most motivated people, because in us, like nowhere else, the thought: “How am I worse than my neighbor?” is rooted. However, as the Eastern folk wisdom says: “Each ram will hang by its own leg.”

Therefore, having carefully studied the norms of Resolution No. 206, in the event that you do not fall under the cases specified in it in any way, you need to remember the following: the option to terminate/suspend the provision of housing and communal services is a fairly effective lever used by communal services, even without waiting for a large amount of debt to accumulate – it is easier to prevent it than to collect it later. And therefore, cutting a gas pipe in a private house becomes a quite understandable disaster, taking into account the fact that gas in this case is used not only for cooking, but also for heating and water heating.

In accordance with Article 257 of the Civil Code of Ukraine, the general statute of limitations is set at 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.

In practice, we have already repeatedly encountered the fact that the statute of limitations for communal services was extended during the period of the corona virus epidemic, and the collection, accordingly, was not for the last 3 years, but for the last 4-5 years. It is impossible to predict exactly what decision the judge will make and what justification for the claim the representative of the communal service will submit.

Already after the court decision has entered into force, the most painful stage in debt collection comes – the stage of executive proceedings, when the executor (state or private) takes up the case and collects the property or funds that he finds from the debtor. The main question that worries everyone is whether real estate will be taken away for communal debts?

Foreclosure on housing is carried out if the debtor does not have sufficient funds or movable property. At the same time, the foreclosure is first applied to a land plot separate from the house, other premises belonging to the debtor. As a last resort, the collection is applied to the residential building or apartment in which the debtor actually lives. The law establishes that in the event that the amount subject to recovery under executive proceedings does not exceed 20 times the minimum wage (currently UAH 160,000), recovery of the debtor’s single dwelling and the land plot on which such dwelling is located shall not be carried out.

However, if the amount of debt due to one enforcement proceeding or the sum of several enforcement proceedings exceeds UAH 160,000, then even the only home owned by the debtor is subject to seizure and sale at auction.

Whether it is easy or not to accumulate debts for 160 thousand hryvnias, everyone must decide for himself, taking into account the constantly increasing cost of communal services, the area of ​​real estate for which payment is calculated, the presence of other executive proceedings, even not related to communal debts (for example , imposing an administrative fine for violating the requirements of the mobilization legislation), and other circumstances.

Therefore, it is necessary to remember that enforcement proceedings can be opened on the basis of:

1. letters of execution and orders issued by courts in cases provided for by law on the basis of court decisions,
2. court order;
3. decisions, resolutions of courts in civil, economic, administrative cases, cases of administrative offenses, criminal proceedings in cases provided for by law;
4. executive inscriptions of notaries;
5. resolutions of state executors on the collection of an enforcement fee, resolutions of state executors or private executors on the collection of costs of executive proceedings, on the imposition of a fine, resolutions of private executors on the collection of the basic remuneration;
6. resolutions of bodies (officials) authorized to consider cases of administrative offenses in cases provided for by law;

It is on the basis of these documents that property, including real estate, can be taken from a citizen. If several executive proceedings are opened in the state executive service body, even under different executive documents, for the collection of funds from the same debtor, they are combined into consolidated executive proceedings and executed by the state executive who opened the first executive proceedings.

We note that the value of real estate that is put up for auction is much lower than the actual market value, not because it will be an auction and the value will increase. On the contrary, no one wants to buy real estate with a bad history and karma at an expensive price. In addition, the executor needs to cover the costs of executive proceedings and the auction itself with the funds of this real estate. Therefore, it is also not worth counting on the fact that the real estate will be sold and everything will end there.

If after the sale of even a single residential property, the debtor still has some amount of debt, no one will forgive or give it away. This tail will remain either until the debt is repaid from other sources, such as wages, or until it is recognized, so to speak, as “bad debt” and is forgiven over time, but it does not take a little more than three years.