How to force the management company to fulfill its duties. Procedure if the duties of the management company are not fulfilled Poorly fulfills its duties

In practice, it turns out that some residents have no idea about the existence of a management company until they personally encounter a problem. For example, they will get tired of stumbling on the steps in a dark entrance every evening, and they will decide to find out who refuses to “turn on the light.”

Often, a burnt-out light bulb in the entrance is either the result of the inattention of organizations, or the indifference of the residents of the house to their own comfort, although one does not interfere with the other.

Nowadays, garbage does not evaporate on its own, and it is not good pioneers who remove it. The management company chosen by the residents is responsible for these and other works that relate to the maintenance and repair of common areas in an apartment building.

But before you demand anything, experts advise paying attention to two points. First, the apartment owner must find out which organization is managing his building. To find out this, you can ask your neighbors, look at the information board, and monitor the Moscow House website, where you can calculate the management company at the desired address, says Viktor Buyanov, head of the Moscow Housing Supervision Inspectorate for the North-Western Administrative District.

Secondly, each owner must have a management agreement in hand, which specifies all the necessary conditions, rights and obligations of the parties.

Get a contract

Therefore, the next step before clarifying relations with a negligent management company is to try to get a management agreement. According to the Housing Code of the Russian Federation, an agreement is concluded with each apartment owner based on a decision of the general meeting of owners in written or electronic form, explains Buyanov.

“Every apartment owner should have an agreement. Unfortunately, many miss this point; they act, as they say, carelessly. If there is no agreement, this is not correct,” clarifies the interlocutor of RIA Real Estate, insisting that if the document is If the owner of the apartment is still absent, he has the right to come to the office of his management company and demand a copy.

As the expert adds, more than 50% of the owners of premises in an apartment building, who are one party to the agreement (the other party is the management company), must sign a management agreement.

Know the responsibilities of the management company

Management organizations must properly maintain and repair common property, by decision of the general meeting of owners, enter into agreements for its use, and also provide utilities to the residents of the house.

Force a reaction

Claims against management companies from the owners can be very different, but what to do if the reaction is long in coming? Let's say a problem has been identified: the garbage chute has not been cleaned for several days. It is clear that the situation is not pleasant. The owner of the apartment already called the management control room, but no action was taken.

Buyanov recommends, first of all, proceeding from the procedure for filing claims established by the contract, and if this does not help, then filing a written complaint with the housing inspectorate. In Moscow this is the Moszhilinspektsiya, in the Moscow region - the Goszhilinspektsiya of the Moscow Region.

If there are violations, specialists will conduct an appropriate inspection, after which the Criminal Code will draw up an order and a protocol. If after this the order is not fulfilled, the housing inspectorate may go to court.

Elimination of emergency situations

It is important to understand that the management organization, within the framework of the contract, provides services that relate only to common property. Services regarding indoor equipment that is the personal property of the owner are provided for an additional fee. Therefore, if a tenant’s toilet is broken, he can contact the management company, and if appropriate specialists are found, they will try to solve the problem, but for a fee.

It’s a completely different matter if the apartment was damaged as a result of an accident related to common property: damage to pipelines, power outages, clogged sewers and other emergency situations.

For example, a common house pipeline was damaged and water entered the living quarters. The owner of the apartment reports the problem to the dispatcher or directly calls the appropriate service, which must have an agreement with the management company in this case, according to which emergency service must be provided. In this case, departure to the site is no later than 30 minutes after the request.

After the accident has been eliminated, the owner of the apartment contacts the management company with a question about eliminating the consequences in the apartment itself. According to experts, the company is drawing up a corresponding act. If there is fault, the management company must compensate for the damage. If the organization refuses or does not respond, the owner has the right to sue it.

Refund

Residents of an apartment building may demand that the management company reduce fees for the maintenance and repair of common property if the management company improperly fulfilled its duties, for example, poorly painted the walls in the entrance, Kutuzovskaya Riviera adds.

According to experts, residents must first contact the management company, and if their legal demands are not met, they can file a complaint with the housing inspectorate or a lawsuit. For example, if after a construction examination it is revealed that the management company is really at fault, then a recalculation will be made.

Summarizing all of the above, experts insist that it is important to know your management company in person; you need to familiarize yourself with the management agreement for an apartment building, which will allow you to have an idea of what can be demanded from the management company and what you will have to pay for separately.

Sofya Povzikova, Head of HR Administration Department at Coleman Services, disclose the topic of dismissals at the initiative of the employer. Today we will talk about dismissals associated with repeated failure to fulfill official duties by employees.

The specified basis is established by paragraph 5 of Article 81 of the Labor Code Russian Federation, but you need to use it by thoroughly preparing personnel documentation on the one hand, and on the other hand, having a reserve of time, because Dismissal on this basis usually takes at least a month.

What is meant by failure to perform or poor performance of official duties?

Failure to fulfill labor duties is a violation of the requirements of labor legislation, the functions specified in the employment contract, local regulations in force at the employer: PVTR, job description, orders from the management of the organization, technical rules for preparing documentation or using equipment, labor protection and safety requirements, etc.

Example: an employee works in a call center and his job description states the duty to “make 40 phone calls per work shift.” If an employee does not fulfill the specified norm during the day, this indicates poor performance of job duties. If during the day the employee for some reason did not make a single call (he invented a job for himself or found reasons to take time off from work), then this is a failure to fulfill his duties.

As can be seen from the example, one of the most important documents establishing requirements for the quality of job responsibilities is a job description or other document specifying the employee’s job function.

A job description is not a mandatory local regulatory act, but its presence and competent wording help the employee, his immediate supervisor and HR specialists determine the quality of the employee’s work in controversial or conflict situations.

Very often, when drawing up a job description, streamlined formulations are used: “call customers” or “register customer orders.” Such vague responsibilities are not of a specific nature, which means that some other document is needed that establishes criteria for assessing the quality of work, and the employee must be familiar with it and sign it. Otherwise, the employer’s actions can be appealed, pointing out that the calls to clients were completed, but the employee was not informed that exactly 40 calls were needed.

What is meant by “repeated failure”?

In practice, there are very often cases when managers complain to HR specialists about the quality of work of line personnel. However, just as often, managers refuse to document the identified violations: a lot of documents need to be completed, and, as always, there is not enough time. The HR specialist must understand that verbal complaints from the manager cannot be considered as failure to fulfill official duties. Therefore, “repeated failure to comply” means several documented disciplinary sanctions for various violations of various official duties.

It is impossible to impose a disciplinary sanction for the same violation, otherwise two penalties will be applied to the employee for one offense, which is unlawful (Part 5 of Article 193 of the Labor Code of the Russian Federation).

Let's return to our example: an employee can receive the first disciplinary sanction (if there is documentation) for poor performance of official duties, the second, for example, for being late for work.

In 2004, the Plenum of the Supreme Court of the Russian Federation (clause 33 of Resolution No. 2 of March 17, 2004) decided: in order for dismissal on this basis to be legal and justified, two conditions must be simultaneously met:

the employee does not perform job duties without good reason;
the employee commits the violation repeatedly, that is, he already has at least one outstanding or outstanding disciplinary sanction in the form of a reprimand or reprimand.

What documents should I fill out to impose a disciplinary sanction on an employee?

So, the employee did not work properly and made only 10 calls (instead of 40), and his manager demands that the HR specialist reprimand him. We discussed in detail the actions of the personnel officer when filing a disciplinary sanction in the article “Loss of Trust.”

Let's repeat some points:

It is necessary to explain to the immediate supervisor that he must draw up a memo addressed to the head of the organization (since it is this person who, in accordance with the Charter of the organization, is authorized to be an employer). The memo should record:

— Full name of the employee;

— date and time of the violation. If the violation is detected after the end of the working day, this must also be indicated

— details of the violation itself and detection of the violation

— the manager’s proposals on measures to influence the employee.

Indicative text of the memo for our example:

“On April 13, 2017, a call center specialist (full name) made 10 phone calls during a work shift from 9:00 to 18:00, in violation of the requirements of the job description. I became aware of this fact in the process of summing up the results of the working day. I propose to reprimand (full name).”

It is necessary to explain to the immediate supervisor that a reprimand can only be issued if there are written explanations from the employee about the reasons for failure to fulfill official duties. In practice, there are two mechanisms for obtaining explanations: written (when the employee is given a Request for Explanation) and oral (when the manager verbally demands an explanation from the employee). I cannot advise my HR colleagues on the second option: if an employee appeals the employer’s actions, then without the appropriate document it will be very difficult to prove compliance with the requirements of paragraph 1 of Article 193 of the Labor Code of the Russian Federation.

A request for an explanation is usually prepared by HR specialists and issued to the employee, making sure to record the time the document was issued. The request is issued to the employee against signature. At the request of the employee, he may be given a copy of the Requirement.

After two working days, the employee must provide a written explanation. If an explanation is not provided, it is necessary to draw up a Certificate of Refusal to Provide Explanations. The act is announced to the employee in the presence of witnesses. The employee may sign that he has familiarized himself with the Act, or he may refuse to familiarize himself with it. In this case, the Act is read aloud to the employee.
Two received documents documenting the violation are submitted for consideration to the head of the organization (or other authorized person) for decision-making. The manager, taking into account the available facts, can decide on a penalty or on the absence of grounds for it, and can mitigate the punishment or toughen it. The manager reflects his decision in a resolution, which he writes on a memo.
Based on the decision of the head of the organization, the HR specialist prepares an Order to impose a disciplinary sanction on the employee.

The procedure for HR specialists may vary depending on the traditions of the organization, but two primary documents are required, because are the starting points for calculating deadlines.

Since we are talking about repeated violations, this procedure must be completed at least one more time.

There are two disciplinary sanctions. What's next?

So, the HR specialist has two orders to impose disciplinary sanctions, as well as two sets of justifications for them. The orders are signed by the employee and the employer. Certificates of refusal to familiarize themselves with documents were prepared and signed by witnesses.

If the next violation occurs, a third set of evidentiary documents is prepared and submitted to the head of the organization for decision. If the manager’s decision is dismissal, then it is necessary to prepare a dismissal order in the unified T-8 form, or in the form established in the organization. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, then a corresponding entry is made directly on the order (Article 81, paragraph 5 of the Labor Code of the Russian Federation).

Thus, preparing for dismissal due to repeated failure to fulfill official duties by employees requires:

Availability of a job description (or detailed job responsibilities in the employment contract)
Willingness to complete a lot of documents quickly and accurately.
Time, because dismissal due to repeated failure to perform job duties by an employee takes about a month

If there is no answer, double-check the feedback left in the application or contact the general department of the institution. Drawing up a collective complaint or how to punish the Criminal Code A collective complaint is drawn up by a group of residents who have the right to complain to the State Housing Property Inspectorate or the prosecutor's office, based on the decision of the general meeting, with an extract attached to the minutes. You will first need to attempt to resolve the problem at the management company level. If the collective complaint is rejected here, the residents have the right to draw up an act signed by eyewitnesses, which will indicate that the chairman of the management committee is avoiding contact. Conclusion The disorder in the management company cannot be left to chance. But it is necessary to file complaints about it competently in order to achieve the desired result, using the government resource available to solve the problem.

If the management company does not fulfill its duties

Depending on the size of the claims, the dispute may be considered either by the district court or by a magistrate. In order to win against the management company in court, it is important to draft the claim correctly. It should describe all the circumstances of the conflict. In addition, it is necessary to write that an application was submitted to the management company, which was left unanswered.
If the matter concerns compensation for expenses incurred, then copies of checks, receipts, invoices, and so on must be attached to the claim. It should also be remembered that a claim against the management company is not covered by state duty. If the case is won and the required amounts are collected in court, the management company must pay them from the moment the court decision gains legal force.
Otherwise, the residents of the house have the right to involve the bailiffs in the execution of the decision.

Procedure if the duties of the management company are not fulfilled

Utilities In addition to what the management company carries out practical work While looking after the house, she must also record all kinds of problems and violations. These include interruptions in the provision of utility services. Thus, housing legislation provides for maximum periods of absence of basic communications, exceeding which entails legal liability.

Read also: Application for recalculation of utility bills to the management company: submission procedure. Management protocols are used as evidence of exceeding the specified service standards. That is, a citizen who notices interruptions in services reports this to the employees of the Criminal Code, who must arrive on the spot and record the violation with the relevant Act, one of the copies of which is given to the applicant. These Acts are summarized and calculations are made on their basis.

How to get a home management company to fulfill its responsibilities

Management company. If it turns out that the company does not fulfill the terms of the contract, residents can write a complaint (Form) to the management company itself. The complaint indicates the period for its consideration (for example, ten days), as well as the period for eliminating the problem. 2. Housing inspection and Rospotrebnadzor. If the company has not responded to your complaint in any way, you can file a complaint with the State Housing Inspectorate at your place of residence.

Attention

The housing inspectorate may issue a fine to the management company if specialists identify the fact of improper fulfillment of contractual obligations. You can also contact the Rospotrebnadzor department and the consumer rights protection department. 3. Prosecutor's office and the Court How to sue the management company? If all of the above measures do not help to reach an amicable agreement with the management company, then the owners can sue it.

Info

If the management company does not fulfill its obligations, then not only can the contract with the company be terminated, but penalties may also be applied. The activities of the management company are based on signed contracts with each owner of an apartment in an apartment building. The text of the agreement must specify all the conditions for the provision of services, as well as the procedure and reasons for termination of the contract.

And we must not forget about the protection of consumer rights, because the activities of management companies are nothing more than a consumer service. Range of services According to the current legislation, the involvement of third parties in the care of real estate is not mandatory, that is, the responsibility for looking after an apartment building falls on the shoulders of the residents themselves.

Can owners refuse to pay a company that does not fulfill its obligations well?

“On the provision of utility services to owners and users of premises in apartment buildings and residential buildings,” the contractor is obliged to keep records of complaints (applications, appeals, demands and claims) of consumers regarding the quality of provision of utility services, record the timing and results of their consideration and execution, as well as within 3 working days from the date of receipt of the complaint (application, demand and claim) send the consumer a response on its satisfaction or refusal to satisfy it, indicating the reasons for the refusal. So, in the housing and communal services sector there are two main control bodies - the State Housing Inspectorate and the Federal Service for Supervision of Consumer Rights Protection and Human Welfare. The main functions of supervision in the field of housing and communal services lie with the State Housing Inspectorate. First, file an application (complaint) with the State Housing Inspectorate.

What to do if the management company does not fulfill its duties?

Mandatory compliance with fire safety rules;
The responsibilities of housing and communal services include regular cleaning of entrances and areas near the house, unless, of course, the territory is the property of the house;
The management company is also obliged to remove garbage;
Monitor the process of operation of communal meters;

According to the Housing Code of the Russian Federation, the owner of a home has the right to independently care for his property, he also has every right to transfer management of the property to an organization specializing in this type of activity, that is, to enter into an agreement with a management company, and the owner may not do anything with his property, but in this In this case, it will simply begin to fall apart and eventually become unusable, and no sane owner would allow this, and the main task of the owner is to maintain his property in proper order.

The management company does not fulfill its duties

Now let’s consider an abnormal situation when you contact the management company with a problem, but it is not resolved within 1 day or within a week, in this case there is complete inaction of the management company regarding the maintenance of the house. But you, as a tenant, regularly pay for utilities, contribute money for home repairs, but the cost of housing and communal services does not fall, but rather grows every year, but you do not receive anything in return and see how your property is gradually falling into disrepair, the windows are broken , the entrance is dirty, the lighting is through the floor, when complaining to the control service of the Criminal Code, the reaction is zero. In this case, you need to act; responsibility for maintaining the house rests entirely with the management company.

How to prove that the yt management company fulfills its duties

In court, you will have to prove that the management company was obliged to perform this or that service (proved by the contract), but did not do it, or did it, but in violation of the statutory requirements for the quality of this service, or the deadlines for its execution (acts of commissions, examinations, photographs, etc.). The subject of proof also includes the fact of contacting the management company as a service provider with a request to eliminate violations committed by it (written complaint, complaints to Rospotrebnadzor or the Housing Inspectorate, appeal to the Prosecutor's Office). If the written and other evidence presented by the parties is insufficient, the court may order a construction or other examination.

The court then makes a decision. If it is in your favor, the management company is obliged to fulfill it, and also (if you asked for it) to reimburse all legal costs.

How to prove that the management company is not fulfilling its duties

As a rule, residents always enter into an agreement with a management company, because independent management is not easy and there is not always enough time for it, it is better to transfer management to an organization that will do everything professionally, because everyone should mind their own business. Let's start with an absolutely normal situation, for example, your light bulb in the entrance has burned out, in this case, you must call the dispatch service of your management company and report this problem, within the standard period, you must replace this light bulb, of course, the standards are different everywhere, but in any case, if you called in the morning, then during the day the problem should be fixed and this algorithm of actions should be repeated for any problem, you call the management company and report the problem, they take action and fix the problem.

How to prove that the management company does not fulfill its duties in court

After all, the management company, according to the instructions of the homeowners, over an agreed period of time, for a certain fee, undertakes to carry out a set of works for the proper maintenance and repair of the property of the house and also provide utility services for the house. A management company is selected at a general meeting of premises owners, then this organization must enter into a management agreement with each owner of the premises in this building. This agreement is not concluded forever; it can be terminated at any time; it is terminated if the management company does not fulfill its obligations properly. If the management company improperly fulfills its duties, then a complaint must be written against the management company, it is written in the name of the head of the management company, you can hand it to an authorized employee of the management company, or send it by registered mail with notification.