The theme of Obligations to Heatingand the company's practices for collecting them are still extremely popular among usersof thermal energy. However, the issues related to these obligations are largely unclear to most consumers, leading to wrong decisions and, with them, unnecessary costs of time and resources. For this reason, with this statement we aim to systematize the important points in disputes with Heating and clearly indicate what are the means to protect the legal rights and interests of consumers in each of them.
After receiving an invoice for a certain amount, the first and absolutely mandatory thing we must do is check for what periods of time the amounts claimed by Heating have been charged. In this way we can determine if it has not leaked the limitation periodfor part or all of the amounts claimed. Because the obligations to heating fall under the so-called “periodic payments” the repayment period for them is 3 years.
To put it succinctly, if 3 years have elapsed from the date for which a corresponding obligation was accrued, then the limitation period for repayment has expiredand we can safely ask Toplofikacija to be “written off” from the company's archives.
It is extremely important to do this check before paying anything to the company. Although extinguished by statute of limitations, the obligation continues to exist and the payment under it is fully valid. This means that if we have paid off an overdue obligation, we cannot claim back the money by claiming that the limitation period had expired before the payment was made.
We have checked the received invoice and we have realized that the obligations that Toplofica claims have been repaid by statute of limitations. When they call, we have explained to them or directly submitted an application for the write-off of these amounts, but they continue to seek them in all sorts of ways.
There is also an option for action in this case, and it is expressed in the judicial protection of our rights, which is the filing of the so-called negative establishment claim. To put it as simply as possible, this is filing a claim with the court to recognize that the sums claimed by Heating have been repaid after the limitation period and are not due. This is a procedure in which assistance is needed to a lawyer, since it requires a detailed study of the facts relevant to the case, their correct statement and their support with evidence before the court. Albeit more complex, this method is undoubtedly effective when carried out correctly.
Over time, practice has shown that in cases of “Heating” (including with other large creditors, other than Heating) legal action is the only effective way to achieve any successand to put an end to abusive practices towards consumers, according to their particular case.
There are quite a few cases in which Toplofikacija claims actually due and unpaid amounts due by statute of limitations (regardless of the lack of any transparency in the methods by which the amounts are calculated). After making sure that this is the case, it would be best to try to avoidthe undertaking oflegal action against us, since the latter significantly increase the amount of the amounts owed by us, through the charging of state fees and legal fees to them.
If it is not possible to fully repay the amounts due, the conclusion of an agreement on deferred payment is the most suitable option. Such an agreement can be concluded at any stage, regardless of whether proceedings have been initiated in court or a case has already been initiated before private bailiff, but the most appropriate option is to conclude it before the legal proceedings have even begunbecause only then will there be no unnecessarily charged expenses on our obligation.
Again, emphasis should be placed on the preliminary examination of the case. The conclusion of such an agreement by us constitutes an act of recognition of our obligation, which means that from its conclusion, a new limitation period begins to run. If our obligation has been extinguished by statute of limitations and we enter into an agreement for its deferred payment, then we lose the possibility of subsequently invoking a limitation period.
It often happens that we realize that we have obligations to Heating only when we receiveenforcement order under Art. 410 of the GPC.In practice, this means that the company has initiated legal action against us and is seeking legal rights. The Energy Actguarantees the possibility of Toplofikation in the general case to collect its claims in court regardless of their size. This makes it impossible to predict a specific moment when the company will file a lawsuit against a particular debtor. There is, however, a certain limitation to this principle: for consumers living in a building with an established system of share distribution, a settlement account must be drawn up for the relevant year in which the obligation is accrued, the fulfillment of which will be sought in the court order before initiating a lawsuit.
At this stage is the most appropriate let's get in touchwith a lawyer to study the matter in detail, propose possible options and take appropriate action before the enforcement order has entered into force. In the best case, the case may end with the filing of an objection filed with the court within the corresponding period of one month from the receipt of the order. These are the cases in which the objection is justified — the sums requested by Toplofikacija are repaid in full by statute of limitations. In these cases, a common scenario is for Toplofikacija to disinterest in proving to the court (within the relevant one-month period) that the amounts have not been repaid by statute of limitations and the case is terminated. It is important to know that a similar scenario requires a qualified check from professionals, with the requisite knowledge of the matter, the purpose of which the examination shall be to establish from the outset whether the lodging of the abovementioned objection would lead to the desired result. The lodging of an unfounded objection would lead to a further increase in the liability for legal costs.
Often, although justified, the objection does not lead to the termination of the case, as in the above cases. Heating has the right to defend its claim, to present evidence of its occurrence, its size and to substantiate its claims about its due in a courtroom. In these cases, a detailed, thorough and professional analysis of all the evidence in the case, the chronology of the factual situation, including the amounts invoiced, the follow-up of the exchange of documentation and the preparation of a plan for adequate judicial protection by a lawyer are part of the necessary prerequisites for the case to be decided in our favor.
If at this stage we do not organize our defense in a timely manner, we can also easily be convicted for obligations that are repaid by statute of limitationsand for their collection to be brought against us before a bailiff. This option should be avoided, since the initiation of a case before a bailiff is aimed at Forced collectionto our obligations, by means of various enforcement methods, and can easily affect our bank accounts, our wages, our movable property, our real estateand any other property in our possession that is redeemable.
It is important to note that even if we have been convicted and have a lawsuit filed before a bailiff, in various scenarios the limitation periods for our obligation begin to run from the beginning and again it may come to repayment of our obligation by statute of limitations. In this regard, if we have an old case with a bailiff, it is worth checking again whether our obligation has not been repaid by statute of limitations, as well as the legality of the actions performed by the bailiff. If it turns out that there is actually a default repayment of our obligation, again, we can resort to the aforementioned negative establishment claim.
After all these procedures, wasted time, effort and money, every normal person is asked to remove the radiators from their home or office and refuse to use the services of Heating.
The procedure is not so simple.
Even if we take off our radiators and do not use heat energy from the company in our premises, we again we will be obliged to pay the amounts for share distribution, for heating the common parts of the building, as well as for the entire building installation. These bills are completely legal and in this sense can easily be collected in a court order, so simply removing or turning off the heating devices is not a solution.
A decision on a complete refusal to use the services of Heating can be taken only at assembly of the condominium with a majority of 2/3 of the owners of all ideal parts in the building. Obviously, this is a more cumbersome procedure that requires the participation and consent of many people, but at the moment this is the only option for a complete refusal of the company's services.
We hope that with this brief presentation we have been able to assure you that successes can be achieved against Heating. We have tried to describe both some of the cases in which we believe that you can cope on your own and those cases in which it is wiser to resort to professional assistance, but in any situation we believe that bad practices towards the consumer should not be tolerated or ignored.
Other publications on the topic: Enforcement Order under Art. 410 GPK — practical problems.
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