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- Believe what is written: notaries will be allowed to collect housing and utility debts
Believe what is written: notaries will be allowed to collect housing and utility debts
Notaries will be able to collect debts for housing and communal services using the mechanism of executive inscription. This will make it possible to solve the problem out of court. The measure will reduce the burden on the judicial system, but will put the notary in a difficult position, experts warn. How the new mechanism will work - in the material "Izvestia".
An urgent change
Notaries may be allowed to collect debts for housing and communal services with the help of an executive inscription. The corresponding initiative in the first reading passed the State Duma.
"The problem of non-payment for housing and utility services has always been very painful for housing and utilities companies. At present, their interest in the timely receipt of payments is especially relevant due to changes in the financing system, accompanied by an increase in rates and tariffs for housing and communal services for the population and a decrease in the level of budgetary support," - noted in the explanatory note to the bill.
According to Rosstat, the debt of Russians for "communal" at the end of the first quarter of 2023 amounted to almost 900 billion rubles. Over the year, the figure increased by 72 billion rubles. The accumulated debts do not allow to modernize infrastructure and improve the quality of housing and utility services in time.
At the moment, debts on utility payments from individuals can be claimed in a claim or judicial procedure by way of writ or lawsuit.
At the same time, the practice of concluding a contract not in writing, but by means of conclusive actions, is widespread in the housing and utilities sector. Because of this, citizens do not always provide their personal data. In addition, from March 1, 2023, personal data of owners contained in the Unified State Register of Real Estate Owners is available only with the consent of the right holder of the real estate object. But the claimant often does not have the information to identify the debtor.
Meanwhile, from September 1, 2024, the application for a court order must be accompanied by a notice of service. If there is no data on the debtor, it becomes impossible to collect the debt through the court.
A notary's writ of execution as a mechanism for out-of-court debt collection may be a solution to the problem, according to the authors of the initiative.
The notary is obliged to notify the subscriber in advance about the received claim of the collector. Before that, he must request the necessary information about the debtor in the Unified State Register of Debtors and state information resources. This is necessary in order not to confuse the debtor with a bona fide payer.
After receiving the notification, the debtor will be given a period of time to respond (partial or full repayment of the debt, sending objections and filing a statement of claim with the court). If the notary receives the debtor's written objections to the debt calculation, the executive inscription will not be executed. The authors of the draft law are convinced that this approach will help to increase payment discipline.
A well-functioning mechanism
The situation with housing and utilities debts remains extremely tense. To date, the debts of Russians range from 800 billion to 1.5 trillion rubles, suggests Kirill Parfenov, associate professor at the Department of State and Municipal Management, candidate of political sciences.
- Some officials claim that the debt is decreasing, while others, on the contrary, note its growth. In any case, the amount is huge. For comparison: the federal budget revenues for 2024 are planned in the amount of Br35 trillion," says the expert.
The real picture shows that many citizens are facing financial difficulties, which makes it impossible to repay bills in full and on time, says David Adams, General Director of the professional legal group "AID", lawyer.
- The problem is aggravated by high court costs and restricted access to personal data, which makes it difficult to collect debts in court," the expert is convinced.
To solve the problem, the State Duma proposes to expand the scope of application of the notary's executive inscription. The instrument itself is not new for Russia and has been used for the collection of undisputed debts for quite a long time, reminds Vadim Kovrigin, Deputy Director of the Institute of Economics, Management and Law of Moscow State Pedagogical University.
- However, according to Article 90 of the Federal Law "On Notariate", the range of documents on which executive inscriptions can be made is limited. The norm applies to loan agreements, agreements on provision of communication services, as well as notarized transactions on the basis of which a monetary obligation has arisen and has not been fulfilled," the expert lists. In the current wording the fulfillment of the executive inscription on "payments" for housing and communal services is excluded.
If the proposed bill is adopted, utilities will be able to apply to notaries to start the debt collection process. In this case, the notary will act as an authoritative intermediary, believes Denis Tsyplakov, chairman of the VM-Pravo Bar Association.
The management company or resource supply organization will apply to the notary with a package of documents, including a contract for the provision of services and debt calculation, Adams points out.
At the same time, the need to provide the contract significantly complicates the collection of funds, warns Parfenov. The recoverer does not always have it.
- The draft law allows its absence in writing, but in this case the recoverer must provide details of the legal act approving the standard form of the contract with a mandatory indication of the possibility of execution inscription for debt collection. There is no such act yet, and it will not appear immediately," says the Izvestia interlocutor.
In addition to the application for the execution of the inscription to the documents the management company must attach information on the absence of a legal dispute with the debtor and application for the issuance of a court order against the citizen, adds Kirill Marinenko, senior partner of the law firm "Dmitry Fomin and Partners".
- After receiving the documents, the notary requests information about the debtor, checks his rights to housing and notifies the debt through the mail or portal of public services. The debtor is given seven days to voluntarily repay or file an objection. If there is no response, the notary draws up an executive inscription, which becomes the basis for collection through bailiffs or directly through banks," Adams explains.
Unobvious difficulties
The implementation of an executive inscription in practice may face a number of difficulties, warns David Adams. In particular, the procedure leaves risks for bona fide payers.
-For example, in case of mistaken identification of the owner, debts may be presented to a person who is not responsible for them," the lawyer admits.
According to him, there are also issues of control over the actions of notaries. If there are corruption schemes, the mechanism can be used to legalize dubious income.
There are other problems that may arise, Denis Tsyplakov adds. The load on notary offices may increase, which will potentially affect the quality of their work. And payment for the services of notaries will be an additional financial burden for those who already have a debt.
In addition, according to the expert, the participation of notaries may be perceived as an advantage for creditors, which causes concern among debtors and human rights organizations.
- Misunderstanding of legal aspects on the part of debtors may also lead to conflicts. Moreover, the question remains as to whether the notary will be able to process the incoming information from the utilities in a qualified manner, since the number of debtors is huge, and it is also unclear how the notary will be able to verify the validity of the debt, " Tsyplakov notes.
In theory, the mechanism can be set up and operate very effectively, Kirill Marinenko does not rule out, but only if the functioning of all elements is flawless.
- The only difficulty is the procedure itself, as it involves multiple notifications. Plus difficulties in obtaining information about legal disputes and the apparent unwillingness of notaries, given the huge number of such applications, to deal with them, - says the lawyer.
It is important to realize that the bill changes only the way of making a decision on debt collection. The problem is the execution of these decisions, believes Kirill Parfenov.
- The possibilities of bailiffs are limited. In practice, it often happens that they collect a few hundred rubles a month, while the debt increases by several thousand," explains the expert. At the same time, the normal functioning of the housing and utilities sector requires not collection decisions, but actually collected money.
It is also important that the bill provides for a limit on the amount - the debt should not exceed Br500 thousand, emphasizes Parfenov.
In general, the bill on out-of-court collection of debts for housing and utility services with the help of notaries can be an important step in the fight against non-payments, believes David Adams. However, its successful implementation will depend on the elimination of existing problems.
- There is a need for mechanisms to protect debtors from mistakes and abuses, as well as clear regulations for the work of notaries and management companies. If all these aspects are taken into account, the innovation will really be able to reduce the amount of debt and make the housing and utilities system more sustainable," summarizes the lawyer.
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