Management of an apartment building carried out by a homeowners association or a housing cooperative or other specialized consumer cooperative. Legal status of homeowners' association Legal status of homeowners' association
According to its organizational and legal form, a homeowners’ association is non-profit organization. This provision is established by the Housing Code of the Russian Federation. The owners of the premises create a Partnership to jointly manage and ensure the operation of a complex of real estate in the house, as well as agree on the procedure for exercising their rights of ownership, use and disposal common property.
In accordance with the Civil Code of the Russian Federation and Federal Law No. 7-FZ dated January 12, 1996 “On Non-Profit Organizations”, non-profit organizations have special legal capacity, i.e. they can carry out activities aimed at achieving the goals for which they were created and consistent with these goals.
The HOA has the right and opportunity to receive income from economic activities, which are provided for in the Charter. In accordance with Art. 152 “Economic activities of a homeowners’ association” of the Housing Code of the Russian Federation, in order to achieve the goals provided for by the charter of a homeowners’ association, they have the right to engage in the following types of economic activities:
Maintenance, operation and repair of real estate in an apartment building;
Construction of additional premises and common property in an apartment building;
Renting out, renting part of the common property in an apartment building.
Non-profit organizations do not pursue profit as the purpose of their activities and do not distribute the profits received among their members. The Civil Code defines the concept entrepreneurial activity as an activity carried out at your own risk and aimed at systematic obtaining profit from the use of property, sale of goods, performance of work or provision of services (clause 1 of article 2).
A homeowners' association can carry out entrepreneurial activities aimed at increasing the revenue side of the HOA's budget. The HOA Charter must necessarily reflect all specific types of business activities carried out. Income received as a result of business activities must be used only for the purposes for which the partnership was organized and cannot be distributed among homeowners, except in the event of liquidation of the partnership.
The presence or absence of entrepreneurial (economic) activity allows us to divide all Partnerships as subjects of taxation into two groups in which different schemes can be adopted accounting and whose employees will hand over various shapes financial statements.
When registering a Partnership, you must pay attention to ensuring that the Partnership is correctly assigned codes All-Russian classifier industries National economy(OKONKH), since in accordance with tax legislation there are specifics of accounting in various sectors of the economy. To use the accounting rules adopted in the housing and communal services sector, it is necessary that the Partnership be assigned OKONH code 90110 “Operation of the housing stock.”
All income of the partnership goes to the partnership's current account, which is opened in any bank. The settlement (current) account of the partnership is intended for crediting the amounts of received receipts or loans, proceeds from business activities, making settlements with resource supply and contracting organizations, with all kinds of suppliers, making settlements with budgets for taxes and equivalent payments, with workers and employees for wages payments and other payments included in the consumption fund, with banks for loans received and interest on them, as well as for payments according to decisions of courts and other bodies that have the right to make decisions on the collection of funds from accounts legal entities in an indisputable manner.
The formation of funds in the partnership's deposit accounts can be carried out by transferring the corresponding amounts from its settlement (current) account.
Funds received by the partnership from loan accounts in the form of bank loans in rubles can be directed in accordance with the loan agreement or to the settlement (current) accounts of the partnership acting as a borrower, or directly to pay for the credited material assets and expenses, including the issuance of funds for wages with the simultaneous transfer of relevant taxes and other obligatory payments. Repayment of debt on bank loans and payment of interest on them are made by the partnership by transferring funds from its settlement (current) account.
Acceptance of housing payments public utilities the partnership can organize through its settlement (current) bank account. Residents can pay for housing and communal services using a receipt of the established form both through cash settlement centers and through branches of Sberbank of Russia, as well as directly to the cash desk of the partnership.
Chapter 14 of the Housing Code determines the legal status of HOA members. According to Art. 143 of the Housing Code, membership in the HOA arises from the owner of premises in an apartment building on the basis of an application to join the partnership. Thus, in order to become a member of the HOA, the owner of the residential premises only needs to submit an application for admission to the partnership. Persons purchasing premises in an apartment building in which an HOA has been created have the right to become members of the partnership after they acquire ownership of the premises. Membership in the HOA is terminated from the moment of filing an application to withdraw from being a member of the partnership or from the moment of termination of the ownership right of a member of the partnership to premises in an apartment building.
Article 144 of the LC determines the structure of the organs of HOA board, which are the general meeting of members of the partnership and the board.
The highest governing body of the Homeowners Association is general meeting of its members, which is convened in the manner established by the charter of the partnership. The competence of this body includes:
1) introducing amendments to the charter of the partnership;
2) making decisions on the reorganization and liquidation of the partnership;
3) election of the board and audit commission (auditor) of the partnership;
4) establishing the amount of obligatory payments and contributions of members of the partnership;
5) the formation of special funds of the partnership, including a reserve fund, a fund for the restoration and repair of common property in an apartment building and its equipment;
6) making a decision on obtaining borrowed funds, including bank loans;
7) determining the directions for using income from the economic activities of the partnership;
8) approval of the annual plan financial activities partnership and a report on the implementation of such a plan;
9) consideration of complaints against the actions of the board of the partnership, the chairman of the board of the partnership and the audit commission (auditor) of the partnership;
10) adoption and amendment, upon the proposal of the chairman of the board of the partnership, of the internal regulations of the partnership in relation to employees whose duties include servicing an apartment building, provisions on remuneration for their labor;
11) determining the amount of remuneration for members of the board of directors of the partnership;
12) making decisions on leasing, pledging or transferring other rights to common property in an apartment building;
13) other issues provided for by the Housing Code or other federal laws.
The Charter of the Homeowners Association to the competence general meeting its members may also be responsible for resolving other issues.
The general meeting of HOA members has the right to resolve issues that fall within the competence of its board (Article 145 of the Housing Code).
The procedure for organizing and holding a general meeting of HOA members is determined by Art. 146 of the Housing Code, in accordance with Part 1 of which notice of such a meeting is sent in writing by the person on whose initiative it is convened and handed over each member of the partnership against receipt or through postal item (by registered mail). This notice is sent no later than ten days before the date of the general meeting. The General Meeting does not have the right to bring up for discussion issues that were not included in the agenda.
The powers of the general meeting of HOA members are established in accordance with Art. 45 of the Housing Code and the charter of the partnership. The general meeting is valid if it is attended by more than half of the partnership members or their representatives.
Decisions of the general meeting on issues referred to the LC within the competence of the general meeting in accordance with clauses 2, 6, 7, 12, part 2, art. 145 of the Housing Code (making decisions on the reorganization and liquidation of the partnership, on receiving borrowed funds, determining the directions for using income from the economic activities of the partnership, making decisions on leasing or transferring other rights to common property in an apartment building), are adopted no less than 2/3 of the votes of the total number of votes of the members of the partnership. Decisions on other issues are made by a majority vote of the total number of votes of the members of the partnership present at the general meeting or their representatives.
The general meeting of HOA members is chaired by the chairman of the board of the association or his deputy. In case of their absence, the general meeting is chaired by one of the members of the board of the partnership.
The HOA charter may provide voting by written poll or voting by groups of partnership members depending on the type (residential or non-residential) of the premises they own in an apartment building and the issues being resolved (Article 146 of the Housing Code).
According to Art. 147 LCD the executive body of the HOA is its governing body, which manages the activities of the partnership. It has the right to make decisions on all issues of the partnership’s activities, with the exception of issues falling within the exclusive competence of the general meeting of owners of premises in an apartment building and the competence of the general meeting of HOA members.
The HOA board is elected from among the members of the partnership by the general meeting of members of the partnership for the period established by the charter of the partnership, but for no more than two years. It elects the chairman of the partnership from among its members. The board is accountable to the general meeting of members of the partnership.
Meetings of the HOA board are convened by the chairman within the time limits established by the charter of the partnership. A meeting of the board of directors is recognized as valid if one participates in it the majority of its members. The decision of the HOA board is formalized protocol.
IN responsibilities boards include:
1) compliance by the partnership with the legislation and the requirements of the HOA charter;
2) control over the timely payment by members of the partnership of established mandatory payments and contributions;
3) drawing up annual estimates of income and expenses of the partnership and reports on its financial activities, submitting them to the general meeting of the partnership for approval;
4) management apartment building or concluding contracts for its management;
5) hiring workers to service an apartment building and dismissing them;
6) concluding contracts for the maintenance, operation and repair of common property in an apartment building;
7) maintaining a list of members of the partnership, office work, accounting and financial statements;
8) convening and holding a general meeting of members of the partnership;
9) fulfillment of other duties arising from the charter of the HOA (Article 148 of the Housing Code).
Chairman of the Board The HOA is elected for the period established by the charter of the partnership. He ensures the implementation of the decisions of the board, has the right to give instructions and orders to all officials of the partnership, the execution of which is mandatory for them.
The chairman of the board acts without a power of attorney on behalf of the HOA, signs payment documents and makes transactions that, in accordance with the law, the charter of the partnership, do not require mandatory approval by the board of the partnership or the general meeting of its members, develops and submits for approval to the general meeting of members of the partnership internal rules regarding workers whose duties include maintaining an apartment building, the provisions on remuneration for their labor (Article 149 of the Housing Code).
The HOA bodies also include audit commission (auditor), which in accordance with Art. 150 LC is elected by the general meeting of members of the partnership for no more than two years. It may not include members of the board of directors of the partnership. Audit committee elects her from among its members chairman
The Audit Commission (auditor) of the HOA performs the following: responsibilities:
1) conducts at least once a year audit of the financial activities of the partnership;
2) presents to the general meeting of members of the partnership a conclusion on the estimate of income and expenses for the corresponding year of the partnership and a report on financial activities and the amount of mandatory payments and contributions;
3) reports to the general meeting of members of the partnership on its activities.
The HOA may own movable property, as well as real estate located inside or outside the apartment building.
According to Part 2 of Art. 151 residential complex facilities HOAs consist of:
1) from obligatory payments, entrance and other contributions of members of the partnership;
2) income from the economic activities of the partnership, aimed at achieving the goals, objectives and fulfillment of the obligations of the partnership;
3) subsidies to ensure the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies;
4) other income.
Based on the decision of the general meeting of HOA members, the partnership may be formed special funds, spent for the purposes specified in the charter. The procedure for the formation of special funds is determined by the general meeting of members of the partnership.
The HOA board has the right to dispose of the partnership's funds in the bank account in accordance with the partnership's financial plan.
In accordance with Art. 152 of the Housing Code, in order to achieve the goals provided for by the charter, the HOA has the right to engage in economic activity, namely:
1) maintenance, operation and repair of real estate in an apartment building;
2) construction of additional premises and common property in an apartment building;
3) leasing, leasing part of the common property in an apartment building.
Based on the decision of the general meeting of HOA members, income from the economic activities of the partnership is used to pay general expenses or is sent to special funds spent for the purposes provided for by the charter of the partnership. Additional income may be directed to other purposes of the HOA's activities, provided for in Chapter. 14 of the Housing Code and the charter of the partnership.
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Article 143. Membership in a homeowners’ association
1. Membership in a homeowners’ association arises from the owner of a premises in an apartment building on the basis of an application to join the homeowners’ association.
2. If a homeowners’ association has been created in an apartment building, persons purchasing premises in this building have the right to become members of the association after they acquire ownership of the premises.
3. Membership in a homeowners’ association is terminated from the moment of filing an application to leave the partnership or from the moment of termination of the ownership right of a member of the partnership to premises in an apartment building.
4. The register of members of a homeowners’ association must contain information allowing identification of members of the association and communication with them, as well as information on the size of their shares in the right of common ownership of common property in an apartment building.
(Part 4 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
5. A member of a homeowners’ association is obliged to provide the board of the association with reliable information provided for in Part 4 of this article, and promptly inform the board of the association about their changes.
(Part 5 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
6. Membership in a homeowners association created by the owners of premises in two or more apartment buildings is terminated for all who were members of the association of premises owners in one of apartment buildings from the moment of filing an application for withdrawal from the membership of the partnership of the owner of premises in an apartment building, in the partnership of which, after termination of this membership, the members of the partnership who are the owners of premises in the same building will have less than fifty percent of the votes of the total number of votes of the owners of premises in this building. After termination of membership in the partnership, the owners of premises in a given building are required to choose and implement one of the methods of managing an apartment building specified in Article 161 of this Code.
(Part 6 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
Article 143.1. Rights of members of the homeowners association and non-members of the homeowners association in an apartment building
(introduced by Federal Law dated June 4, 2011 No. 123-FZ)
1. Members of a homeowners’ association and non-members of the partnership, owners of premises in an apartment building, have the right to receive from the management bodies of the partnership information about the activities of the partnership in the manner and to the extent established by this Code and the charter of the partnership, and to appeal in court the decisions of the management bodies of the partnership.
2. Members of a homeowners’ association and non-members of the association, owners of premises in an apartment building, have the right to make demands on the association regarding the quality of services provided and (or) work performed.
3. Members of a homeowners’ association and non-members of the association, owners of premises in an apartment building, have the right to familiarize themselves with the following documents:
1) the charter of the partnership, changes made to the charter, certificate of state registration partnerships;
2) register of members of the partnership;
3) accounting (financial) statements of the partnership, estimates of income and expenses of the partnership for the year, reports on the implementation of such estimates, audit reports (in the case of audits);
4) conclusions of the audit commission (auditor) of the partnership;
5) documents confirming the partnership’s rights to property reflected on its balance sheet;
6) minutes of general meetings of members of the partnership, meetings of the board of the partnership and the audit commission of the partnership;
7) documents confirming the voting results at the general meeting of members of the partnership, including voting ballots, voting powers or copies of such powers, as well as written decisions of the owners of premises in an apartment building on issues put to vote during the general meeting owners of premises in an apartment building in the form of absentee voting;
8) technical documentation for an apartment building and other documents related to the management of this building;
9) other internal documents of the partnership provided for by this Code, the charter of the partnership and decisions of the general meeting of members of the partnership.
Article 144. Management bodies of the homeowners’ association
The governing bodies of the homeowners' association are the general meeting of the members of the association and the board of the association.
Article 145. General meeting of members of the homeowners association
1. The general meeting of members of a homeowners’ association is the highest governing body of the association and is convened in the manner established by the charter of the association.
2. The competence of the general meeting of members of the homeowners association includes:
1) introducing amendments to the charter of the partnership or approving the charter of the partnership in a new edition;
(Clause 1 as amended by Federal Law dated 06/04/2011 No. 123-FZ)
2) making decisions on the reorganization and liquidation of the partnership, appointing a liquidation commission, approving interim and final liquidation balance sheets;
3) election of members of the board of the partnership, members of the audit commission (auditor) of the partnership and, in cases provided for by the charter of the partnership, also the chairman of the board of the partnership from among the members of the board of the partnership, early termination of their powers;
(Clause 3 as amended by Federal Law dated 04.06.2011 No. 123-FZ)
4) establishing the amount of obligatory payments and contributions of members of the partnership;
5) approval of the procedure for the formation of the partnership’s reserve fund, other special funds of the partnership (including funds for current and major repairs of common property in an apartment building) and their use, as well as approval of reports on the use of such funds;
(Clause 5 as amended by Federal Law dated 04.06.2011 No. 123-FZ)
6) making a decision on obtaining borrowed funds, including bank loans;
7) determining the directions for using income from the economic activities of the partnership;
8) approval of the annual plan for the maintenance and repair of common property in an apartment building, a report on the implementation of such a plan;
(Clause 8 as amended by Federal Law dated 04.06.2011 No. 123-FZ)
8.1) approval of estimates of income and expenses of the partnership for the year, reports on the implementation of such estimates, audit reports (in the case of audits);
(clause 8.1 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
8.2) approval of the annual report on the activities of the management board of the partnership;
(clause 8.2 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
8.3) approval of the conclusion of the audit commission (auditor) of the partnership based on the results of the audit of the annual accounting (financial) statements of the partnership;
(clause 8.3 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
9) consideration of complaints against the actions of the board of the partnership, the chairman of the board of the partnership and the audit commission (auditor) of the partnership;
10) adoption and amendment, upon the proposal of the chairman of the board of the partnership, of the internal regulations of the partnership in relation to employees whose responsibilities include the maintenance and repair of common property in an apartment building, provisions on the payment of their labor, approval of other internal documents of the partnership provided for by this Code, the charter of the partnership and decisions of the general meeting of members of the partnership;
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
11) determining the amount of remuneration for members of the board of the partnership, including the chairman of the board of the partnership;
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
12) has become invalid. - Federal Law of September 27, 2009 No. 228-FZ;
13) other issues provided for by this Code or other federal laws.
3. The charter of the homeowners’ association may also include the resolution of other issues in addition to those specified in Part 2 of this article within the competence of the general meeting of members of the association.
4. The general meeting of members of the homeowners’ association has the right to resolve issues that fall within the competence of the association’s board.
Article 146. Procedure for organizing and holding a general meeting of members of the homeowners association
1. Notification of a general meeting of members of a homeowners’ association is sent in writing by the person on whose initiative the general meeting is convened, and is given to each member of the association against signature or by mail (registered mail) or in another way provided for by the decision of the general meeting of members of the association or charter of the partnership. The notice is sent no later than ten days before the date of the general meeting.
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
1.1. The provisions of Articles 45 - 48 of this Code apply to the procedure for holding a general meeting of members of a homeowners association, unless otherwise established by this section.
(Part 1.1 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
2. The notice of a general meeting of members of a homeowners association shall indicate information about the person on whose initiative the general meeting is convened, the place and time of the meeting, and the agenda of the general meeting. The general meeting of members of the homeowners association does not have the right to bring up for discussion issues that were not included in the agenda.
3. The powers of the general meeting of members of the homeowners’ association are established in accordance with Article 45 of this Code and the charter of the partnership. The general meeting of members of a homeowners' association is valid if it is attended by members of the association or their representatives who have more than fifty percent of the votes of the total number of votes of the members of the association.
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
4. Decisions of the general meeting of members of the homeowners association on issues referred by this Code to the competence of the general meeting in accordance with paragraphs 2, 6 and 7 of part 2 of Article 145 of this Code are adopted by at least two-thirds of the votes of the total number of votes of the members of the association. Decisions on other issues are made by a majority vote of the total number of votes of the members of the partnership or their representatives present at the general meeting.
(as amended by Federal Law dated September 27, 2009 No. 228-FZ)
5. The general meeting of members of the homeowners association is chaired by the chairman of the board of the association or his deputy. In case of their absence, the general meeting is chaired by one of the members of the board of the partnership.
6. The decision of the general meeting of members of the homeowners’ association may be adopted by absentee voting in the manner established by Articles 47 and 48 of this Code.
7. In the case provided for in Part 2.1 of Article 135 of this Code, holding a general meeting of members of the homeowners association using the system is carried out in compliance with the requirements established by Article 47.1 of this Code.
(Part 7 introduced by Federal Law dated July 21, 2014 No. 263-FZ; as amended by Federal Law dated June 29, 2015 No. 176-FZ)
Article 147. Board of the homeowners association
1. Management of the activities of the homeowners’ association is carried out by the board of the association. The board of a homeowners' association has the right to make decisions on all issues of the partnership's activities, with the exception of issues falling within the exclusive competence of the general meeting of owners of premises in an apartment building and the competence of the general meeting of members of the homeowners' association.
2. The board of a homeowners association is elected from among the members of the association by the general meeting of members of the association for the period established by the charter of the association, but not more than for two years.
3. The board of a homeowners’ association elects from among its members the chairman of the partnership, if the election of the chairman of the partnership is not within the competence of the general meeting of members of the partnership by the charter of the partnership.
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
3.1. A member of the board of a homeowners' association cannot be a person with whom the association has entered into an agreement for the management of an apartment building, or a person holding a position in the management bodies of the organization with which the association has entered into the said agreement, as well as a member of the audit commission (auditor) of the association. A member of the board of a homeowners' association cannot combine his activities on the board of the partnership with work in the partnership under an employment contract, as well as entrust, trust, or otherwise entrust to another person the performance of his duties as a member of the board of the partnership.
(Part 3.1 introduced by Federal Law dated June 4, 2011 No. 123-FZ)
4. The board of a homeowners association is the executive body of the partnership, accountable to the general meeting of members of the partnership.
5. A meeting of the board of a homeowners association is convened by the chairman within the time limits established by the charter of the association.
6. The board of a homeowners’ association is competent to make decisions if at least fifty percent of the total number of members of the board of the association are present at a meeting of the board of the association. Decisions of the board of the partnership are made by a simple majority of votes from the total number of votes of the board members present at the meeting, unless a larger number of votes for making such decisions is provided for by the charter of the partnership. Decisions made by the board of the partnership are documented in the minutes of the meeting of the board of the partnership and signed by the chairman of the board of the partnership, the secretary of the meeting of the board of the partnership.
(Part 6 as amended by Federal Law dated June 4, 2011 No. 123-FZ)
Article 148. Responsibilities of the board of a homeowners association
The responsibilities of the homeowners association board include:
1) compliance by the partnership with the legislation and the requirements of the charter of the partnership;
2) control over the timely payment by members of the partnership of established mandatory payments and contributions;
3) drawing up estimates of income and expenses for the corresponding year of the partnership and reports on financial activities, submitting them to the general meeting of members of the partnership for approval;
4) management of an apartment building or concluding contracts for its management;
5) hiring workers to service an apartment building and dismissing them;
6) concluding contracts for the maintenance, operation and repair of common property in an apartment building;
7) maintaining a register of members of the partnership, office work, accounting and financial reporting;
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
8) convening and holding a general meeting of members of the partnership;
9) fulfillment of other duties arising from the charter of the homeowners association.
Article 149. Chairman of the board of a homeowners association
1. The chairman of the board of a homeowners association is elected for the period established by the charter of the association. The chairman of the board of the partnership ensures the implementation of decisions of the board, has the right to give instructions and orders to all officials of the partnership, the execution of which is mandatory for these persons.
2. The chairman of the board of a homeowners’ association acts without a power of attorney on behalf of the partnership, signs payment documents and makes transactions that, in accordance with the law, the charter of the partnership, do not require mandatory approval by the board of the partnership or the general meeting of members of the partnership, develops and submits for approval to the general meeting of members of the partnership the internal regulations of the partnership in relation to employees whose responsibilities include the maintenance and repair of common property in an apartment building, regulations on the payment of their labor, approval of other internal documents of the partnership provided for by this Code, the charter of the partnership and decisions of the general meeting of members of the partnership.
(as amended by Federal Law dated June 4, 2011 No. 123-FZ)
Article 150. Audit commission (auditor) of a homeowners’ association
1. The audit commission (auditor) of a homeowners’ association is elected by the general meeting of members of the association for no more than two years. The audit commission of a homeowners' association cannot include members of the association's board.
2. The audit commission of the homeowners association elects the chairman of the audit commission from among its members.
3. Audit commission (auditor) of the homeowners association:
1) conducts audits of the financial activities of the partnership at least once a year;
1.1) presents to the general meeting of members of the partnership a conclusion based on the results of the audit of the annual accounting (financial) statements of the partnership;
(Clause 1.1 introduced by Federal Law dated 04.06.2011 No. 123-FZ)
2) presents to the general meeting of members of the partnership a conclusion on the estimate of income and expenses for the corresponding year of the partnership and a report on financial activities and the amount of mandatory payments and contributions;
3) reports to the general meeting of members of the partnership on its activities.
Article 151. Funds and property of the homeowners’ association
1. A homeowners’ association may own movable property, as well as real estate located inside or outside an apartment building.
2. The funds of the homeowners association consist of:
1) mandatory payments, entrance and other contributions of members of the partnership;
2) income from the economic activities of the partnership, aimed at achieving the goals, objectives and fulfillment of the obligations of the partnership;
3) subsidies to ensure the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies;
4) other income.
3. Based on the decision of the general meeting of members of the homeowners’ association, special funds may be formed in the association, spent on the purposes provided for in the charter. The procedure for the formation of special funds is determined by the general meeting of members of the partnership.
4. The board of the homeowners association has the right to dispose of the funds of the association located in the bank account in accordance with the financial plan of the association.
Article 152. Economic activity of a homeowners’ association
1. To achieve the goals provided for by the charter, the homeowners association has the right to engage in economic activities.
2. A homeowners’ association may engage in the following types of economic activities:
1) maintenance, operation and repair of real estate in an apartment building;
2) construction of additional premises and common property in an apartment building;
3) renting out, leasing part of the common property in an apartment building.
3. Based on the decision of the general meeting of members of the homeowners’ association, income from the economic activities of the association is used to pay general expenses or is sent to special funds spent for the purposes provided for by the charter of the association. Additional income may be directed to other purposes of the activities of the homeowners association, provided for by this chapter and the charter of the association.
Federal Agency for Education
Samara State Economic University
Department of Law
I APPROVED
Head department
Ph.D. Croz M.K.
Legal status of homeowners' associations
Specialty 030501 Jurisprudence
Head of work Popova Ekaterina Vasilievna:
Introduction
Chapter I. Legal status homeowners association
1. Organizational and legal form of the homeowners association
2. Legal capacity of the homeowners association
3. Funds, property and economic activities of the homeowners association
Chapter ΙΙ. The emergence and termination of a homeowners' association
1. Creation and state registration of homeowners’ associations
2. Features of the creation and state registration of homeowners’ associations in an apartment building under construction
3. Association of homeowners' associations
4. Reorganization and liquidation of homeowners’ associations
Chapter ΙΙΙ. Legal status of members of homeowners' associations
1. Membership in a homeowners association
2. Management and control bodies of the homeowners association
Conclusion
List of literature, regulations and judicial arbitration practice
Chapter I. Legal status of homeowners association
1. Organizational and legal form of homeowners’ associations
The legislator gives the following definition of a homeowners' association as a non-profit organization, an association of owners of premises in an apartment building for the joint management of a complex of real estate in an apartment building, ensuring the operation of this complex, ownership, use and established by law within the limits of disposal of common property in an apartment building.
According to paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, non-profit organizations can be created in organizational legal forms provided for by this Code, as well as in the forms provided by law. In accordance with this norm of the Civil Code of the Russian Federation, Part 1 of Article 135 of the Housing Code of the Russian Federation, provides for an additional organizational and legal form of a non-profit organization - a homeowners' association, which is an association of owners of premises in an apartment building. Such an association can be created according to the general rule by the owners of premises in one apartment building (Part 1 of Article 136 of the Housing Code).
Additionally, part 2 of Art. 136 of the Housing Code of the Russian Federation provides for the possibility of creating a homeowners' association when uniting the owners of several apartment buildings or several nearby buildings, structures or structures - residential buildings in compliance with the requirements established by paragraphs 1 and 2 of part 2 of this article of the Housing Code of the Russian Federation, as well as by creating an association homeowners' associations (Articles 136 and 142 of the Housing Code).
According to paragraph 1 of Art. 50 Civil Code of the Russian Federation and Art. 2 of the Federal Law "On Non-Profit Organizations" a non-profit organization is an organization that does not have profit as the main goal of its activities and does not distribute the profits received among participants. At the same time, it has been established that non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, development physical culture and sports, satisfying the spiritual and other non-material needs of citizens, protecting the rights and legitimate interests of citizens and organizations, resolving disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits. Thus, the purpose of creating a homeowners’ association is the joint management of a complex of real estate in an apartment building, ensuring the operation of this complex, ownership, use and, within the limits established by law, the disposal of common property in an apartment building. At the same time, the adoption by the owners of premises in an apartment building of a decision to create a homeowners’ association is the implementation of the obligation assigned by the Housing Code of the Russian Federation to these owners to choose one of the methods of managing such a building provided for by the same code.
The goals of creating a homeowners’ partnership by the owners of premises in an apartment building for the joint management of a real estate complex can be divided into two components:
Direct management of a complex of real estate in an apartment building, including resolving issues of ensuring the operation of such a complex, which involves the provision of favorable and safe conditions their residence, resolving issues of proper maintenance of common property in a given house, use of said property, as well as the provision of utilities to citizens living in such a house;
Realization of rights to own, use and, within the limits established by law, dispose of common property in an apartment building, which presupposes the possibility of using this property in the economic activities of the partnership.
In addition, taking into account that the ownership of a homeowners’ association may include both movable and immovable property located inside or outside an apartment building (Part 1 of Article 151 of the Housing Code), the association also makes management decisions on possession, use and disposal of the said property.
All property in an apartment building, with the exception of premises owned by the owners of the premises in such a building, constitutes the common property of the apartment building and belongs by the right of common shared ownership to the specified owners of the premises (Article 36 of the Housing Code).
The Housing Code establishes requirements for the procedure for adopting the charter of a homeowners' association, which is the only constituent document of the partnership as a non-profit organization. The charter of the partnership is adopted at a general meeting of owners of premises in an apartment building by a simple majority of votes of the total number of votes of owners of premises in such a building.
The general meeting of owners of premises in an apartment building or persons who will have ownership rights to premises in an apartment building under construction must be held in the manner established by Art. Art. 45 - 48 Housing Code of the Russian Federation. Such a general meeting is valid (has a quorum) if the specified owners or persons with more than 50% of the votes of the total number of votes took part in it. In this case, the number of votes that each owner of premises in an apartment building has at such a general meeting or the person who will have the right of ownership in an apartment building under construction is determined in proportion to the share of each of them in the right of common ownership of common property in this building. The procedure for determining shares in the right of common ownership of common property in an apartment building is established by Art. Art. 37 and 42 of the RF Housing Code.
At the same time, taking into account clause 2 of Art. 52 of the Civil Code of the Russian Federation, the charter of a homeowners’ association must necessarily reflect the name of such a non-profit organization, indicating the organizational and legal form, location, procedure for managing activities, as well as the subject and purpose of the activity. At the same time, the charter of the partnership may reflect issues that, in accordance with Section. 6 of the Housing Code of the Russian Federation are resolved by this partnership. For example, issues related to the procedure for convening (Part 1 of Article 145 of the Housing Code), competence (Part 3 of Article 145 of the Housing Code), competence (Part 3 of Article 146 of the Housing Code) of the general meeting of members of the homeowners association, with the voting method at such a meeting (Part 6, Article 146 of the Housing Code), establishing the terms of office of the board of the partnership (Part 2, Article 147) and the chairman of the board of the partnership (Part 1, Article 149 of the Housing Code), the terms for convening meetings of the board of the partnership (Part 6 Article 147 of the Housing Code).
The legislator established the basic requirement for creating a homeowners' association: the sum of votes belonging to the owners of premises in an apartment building who voted for the creation of a partnership in this building must collectively be more than 50% of the votes belonging to all owners of premises in this building.
A non-profit organization is created without a limitation on the period of activity, unless otherwise established constituent documents non-profit organization (clause 2, article 3 of the Federal Law “On Non-Profit Organizations”).
In accordance with this provision, the Housing Code establishes a dispositive rule regarding the period of activity of a homeowners' association. According to this rule, if the period of activity of a homeowners' association is not determined by its Charter, it is considered that such a partnership was created without limiting the period of its activity.
The legislator directly defines a homeowners' association as a legal entity whose legal capacity arises from the moment of state registration. According to paragraph 2 of Art. 51 of the Civil Code of the Russian Federation, a legal entity is considered created from the date of making the corresponding entry in the unified state register of legal entities. Registration of a homeowners' association as a legal entity is carried out in the manner established by the Federal Law "On State Registration of Legal Entities and individual entrepreneurs".
As a legal entity, a homeowners association must have its own name, which contains an indication of its organizational and legal form. The location of the partnership as a legal entity in accordance with clause 2 of Art. 54 of the Civil Code of the Russian Federation is determined by the place of its state registration. The specified state registration is carried out at the location of the permanent executive body of the homeowners association, which, in accordance with Part 4 of Art. 147 of the Housing Code of the Russian Federation is the board of the partnership. At the same time, attention should be paid to the fact that state registration at the location of a person who has the right to act on behalf of a legal entity without a power of attorney (in a partnership - the chairman of the board) is allowed only in the absence of a permanent executive body (Articles 147 and 149 of the Housing Code ). In the absence of a specially designated premises in an apartment building for holding meetings of the board of a homeowners' association, it seems that the venue for such meetings, by agreement of the members of the partnership, can be chosen, for example, a premises owned by one of the members of the board, including his to the chairman. Accordingly, the corresponding premises in an apartment building agreed upon by the members of the partnership may be indicated as the location of the partnership.
The homeowners association must have a seal with its name, a current and other bank account, as well as other necessary details.
According to paragraph 4 of Art. 3 of the Federal Law “On Non-Profit Organizations”, a non-profit organization must have a seal with the full name of this non-profit organization in Russian, and may also have a duly registered emblem. Taking into account this provision, the homeowners association must have a seal with the obligatory indication of its name in Russian.
Opening a bank account is a necessary condition for the activities of a homeowners association as a legal entity. Settlement operations of legal entities are carried out through commercial banks, in which, through the conclusion of agreements
bank account, appropriate accounts are opened (settlement, current, correspondent, etc.). Currently, legal entities are allowed to open any number of bank accounts, including legal entities having the right to have foreign currency accounts in authorized banks of the Russian Federation.
It is also advisable to keep in mind that the homeowners association is not required to agree with the tax authorities on more than just the number of its accounts. But also specific banks or other credit organizations (if we are not talking about foreign banks) in which it intends to open appropriate accounts. This conclusion corresponds to the official position of the Federal Tax Service, which was set out in the letter of the State Tax Service of the Russian Federation dated October 25, 1996 No. VK-6-12/748 “On the rights of taxpayers to open accounts”
Relations related to the property liability of the homeowners association are regulated in Part 6 of Art. 135 of the LC and are based on the relevant provisions of the Civil Code of the Russian Federation. Availability of independent
property liability is one of the most important features of a legal entity. The partnership is liable for its obligations with all its property, i.e. all property owned by him.
Meanwhile, in practice, collection is often directed primarily at the funds of a legal entity in bank accounts, despite the fact that the amounts in the accounts may include, for example, advance payments that do not belong to it until the payment is made. provisionally works, services, transfer of products or goods, as well as borrowed and other non-owned organizations cash. However, it is with this property that a legal entity, as a rule, is liable for its obligations. In this regard, it is advisable to interpret this norm broadly, since according to Art. 56 of the Civil Code of the Russian Federation, a legal entity is liable for its obligations with all the property belonging to it, and therefore not only with that mentioned in paragraph 1 of Art. 48 Civil Code of the Russian Federation. Therefore, real rights should not be considered as necessary and exclusive legal forms property separation of a legal entity.
Only the presence of one's own property can ensure independent property liability of the homeowners' association. The legislation does not establish minimum size(value) of property that should be owned (have the right of ownership or right operational management) non-profit legal entity 12. However, the homeowners' association in its charter determines the procedure for forming the property of the association or indicates the amount of entrance, targeted, periodic and other contributions of its members, or fixes the method for calculating various types of contributions of members of the association. This will at least minimally guarantee the rights of creditors.
Experts rightly point out that all profits received by the homeowners’ association from business activities and the use of property that the partnership acquires must be directed to the main activities of the partnership and cannot be divided. Here it is necessary to clearly distinguish between profit from partnership property and profit from real estate. Located in common shared ownership of the members of the partnership as owners of premises in an apartment building. Only profits received from the use of the property of the partnership itself are not subject to division. If the profit was received from the use of the common property of the owners of premises in an apartment building, then this profit is essentially the income of the owners from their property (Article 218 of the Civil Code of the Russian Federation) and should be distributed among them, especially since not all owners can be members partnership.
The homeowners association is only entitled to a fee for managing the common property of the owners, like any manager or employee. This fee is the income of the partnership, which, in accordance with the law, is not subject to division between the members of the partnership. Under no circumstances shall the common property of the owners of premises in an apartment building be transferred into the ownership of the homeowners' association. It always remains the common property of the owners of the premises and becomes property only together with the corresponding premises (Article 37 of the Housing Code of the Russian Federation). Members of the partnership do not have the right to transfer their debts in the common property of an apartment building to the ownership of the partnership as entrance fees (part 4 of article 37 of the Housing Code of the Russian Federation, clause 2 of article 290 of the Civil Code of the Russian Federation).
Members of a homeowners association are not liable for the obligations of the association. And the partnership is not responsible for the obligations of its members. On the one hand, the obligations of the members of the partnership exist independently of the obligations of the corresponding homeowners association, and the membership relationship does not give rise to the relationship of these obligations. On the other hand, the joint liability of a partnership for the obligations of its members is not only not provided for by law, but is actually excluded by the imperative provision of Part 6 of Art. 135 Housing Code of the Russian Federation. Due to this circumstance, it cannot be established by an agreement between the partnership and its members or enshrined in the charter of such a partnership. In this case, the general rules of Art. 322 of the Civil Code of the Russian Federation that a joint and several obligation may be provided for, in particular, by an agreement, in our opinion, should not be applied, since a special norm of housing legislation applies here.
In particular, according to paragraph 3 of Art. 56 of the Civil Code of the Russian Federation, if the insolvency (bankruptcy) of a homeowners' association as a legal entity is caused by a member of the partnership who has the right to give instructions mandatory for this legal entity, or by a member of the partnership who has the ability to determine the actions of such a partnership on such persons in the event of insufficiency of the property of this partnership as a legal entity, subsidiary liability may be imposed for its obligations. In addition, taking into account paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, the chairman of the board of the partnership, who, by virtue of the relevant provisions of the Housing Code of the Russian Federation, has the right to act on behalf of the partnership as a legal entity, must act in the interests of the legal entity he represents in good faith and reasonably and is obliged, at the request of the members of the partnership, unless otherwise provided by law or agreement, to compensate losses caused by him to this partnership.
2. Legal capacity of the homeowners association
A homeowners' association is a non-profit organization based on the membership of the owners of premises in an apartment building. Members of the association of owners of premises in an apartment building can be citizens and legal entities, the Russian Federation, constituent entities of the Federation and municipalities. A homeowners' association is created for the purpose of joint management of a complex of real estate in an apartment building, ensuring the operation of this complex, ownership, use and, within the limits established by law, disposal of common property in an apartment building. As a general rule, a homeowners' association as a legal entity may have civil rights corresponding to the goals of its activities provided for in its charter, and bear responsibilities associated with these activities.
Since a homeowners association is a non-profit organization, its legal capacity as a legal entity is always special. Special legal capacity presupposes the possession of only those rights and the performance of only those duties that correspond to the goals of the partnership’s activities as a legal entity established by the Housing Code of the Russian Federation. Taking into account Art. 173 of the Civil Code of the Russian Federation, a transaction made by a homeowners’ association as a legal entity that goes beyond the scope of the special legal capacity established by the Housing Code of the Russian Federation may be declared invalid by the court upon the claim of both the partnership itself and any of its members.
Parts 1 and 2 of Article 137 of the Housing Code of the Russian Federation contain a closed list of rights within the framework of which a homeowners’ association has the right to carry out its activities. This list of partnership actions permitted by the Housing Code of the Russian Federation means that the partnership cannot perform any other actions that are not provided for by the Housing Code and that do not correspond to the goals and objectives of the created partnership.
The Partnership has the right:
Conclude, in accordance with the law, an agreement for the management of an apartment building, as well as agreements on the maintenance and repair of common property in an apartment building, agreements on the provision of utility services and other agreements in the interests of members of the partnership;
Determine an estimate of income and expenses for the year, including the necessary expenses for the maintenance and repair of common property in an apartment building, the costs of major repairs and reconstruction of an apartment building, special contributions and deductions to the reserve fund, as well as expenses for other expenses established by the Housing Code and the charter partnership goals;
Establish, on the basis of the accepted estimate of income and expenses for the year of the partnership, the amounts of payments and contributions for each owner of premises in an apartment building in accordance with his share in the right of common ownership of common property in an apartment building;
Perform work for owners of premises in an apartment building and provide them with services;
Use loans provided by banks in the manner and under the conditions provided for by law;
Transfer material and monetary resources under the agreement to those who perform work for the partnership and provide services to the partnership;
Sell and transfer for temporary use, exchange property belonging to the partnership;
Part 2 of Article 137 of the Housing Code of the Russian Federation contains a separate list of the rights of the partnership, additionally linking the possibility of their implementation with the need to respect the rights and legitimate interests of all owners of premises in an apartment building.
Provide for use or limited use of part of the common property in an apartment building;
In accordance with the requirements of the law, in the prescribed manner, build on, rebuild part of the common property in an apartment building;
Receive for use or acquire land plots into common shared ownership of the owners of premises in an apartment building for the implementation of housing construction, construction of outbuildings and other buildings and their further operation;
To carry out, in accordance with the requirements of the law, on behalf and at the expense of the owners of premises in an apartment building, the development of allocated land plots adjacent to such a house;
Conclude transactions and perform other actions consistent with the goals and objectives of the partnership.
In this regard, experts rightly point out that, according to Art. 247 of the Civil Code of the Russian Federation, the disposal of property in common shared ownership is carried out by agreement of the parties. A homeowners' association has the right to provide for use (this action is one of the types of disposal) common property in an apartment building only with the consent of all owners of the premises who are not members of the association. The consent of such owners must be in writing. The same procedure applies to the right to customize and rebuild part of the common property in an apartment building.
Provision of Art. 247 of the Civil Code of the Russian Federation has great legal force. Therefore, the procedure for applying Part 2 of Art. 137 of the Housing Code should not violate the norm of the Civil Code as the law governing property relations. The norms of the Housing Code governing property relations regulated by the Civil Code of the Russian Federation, according to Art. 3 of the Civil Code of the Russian Federation must not contradict the norms of the Civil Code, and in the event of such a contradiction, the norms of the Civil Code are applied. Only with the written consent of all owners of residential premises (not members of the partnership) does the homeowners association have the right to dispose of common property in an apartment building, as provided for in clauses 1, 2, part 2 of Art. 137 Housing Code.
According to Art. 39 of the Housing Code of the Russian Federation, owners of premises must bear the burden of expenses for the maintenance of common property in an apartment building, the amount of which is determined based on the share of each owner in the right of common ownership of common property in such a building. In this case, the share in the right of common ownership of common property in an apartment building, which belongs to a specific owner of the premises in such a building, is determined in proportion to the size of the total area of the specified premises. In addition, according to Part 8 of Art. 156 and part 1 of Art. 158 of the Housing Code of the Russian Federation, the owner of a premises in an apartment building bears the burden of other expenses associated with the maintenance and repair of the premises belonging to him.
A homeowners' association has the right to apply to the court for forced reimbursement by the owners of premises in an apartment building in which such a partnership is created for mandatory payments and contributions in the event of failure of these owners to fulfill their obligations to participate in common expenses, both for the maintenance of common property in an apartment building and and for the payment of payments and contributions obligatory for each owner of the premises in a given house, including for the provided utilities.
If, as a result of improper performance by the owners of premises in an apartment building, their obligations to pay mandatory payments, contributions, and incur other general expenses caused losses to the partnership, such a partnership has the right to go to court demanding full compensation for the losses caused by these actions. Compensation for damages caused is one of the ways to protect violated rights (Article 12 of the Civil Code of the Russian Federation). Of course, untimely payment for any services provided to the owner of the premises in an apartment building, reimbursement of costs for the restoration of property, or the impossibility of timely renting out part of the common property in such a house due to the fault of any owner of the premises or another person entails additional expenses for such a partnership or leads to impossibility of obtaining income as planned by the estimate.
According to Art. 15 of the Civil Code of the Russian Federation, losses are understood as expenses that the homeowners association has made or will have to make to restore the violated right, loss or damage to its property (real damage), as well as lost income that such a partnership would have received during the “normal” implementation of business activities, if his right had not been violated (lost profits). In addition, if the person who violated the right received income as a result, the homeowners association, in the event of a violation of its rights, has the right to demand compensation, along with other damages, for lost profits in an amount not less than such income.
The fulfillment of the obligations of the partnership established by the Housing Code of the Russian Federation should not contradict the Constitution of the Russian Federation, the civil and housing legislation of the Russian Federation, as well as the Charter of the partnership. If a homeowners association carries out activities prohibited by law or with other repeated or gross violations of the law or other legal acts, or if gross violations of the law are committed during the creation of such a partnership, if these violations are irreparable, the homeowners association as a legal entity, by decision the court may be liquidated (clause 2 of article 61 of the Civil Code of the Russian Federation). A demand for liquidation on the specified grounds has the right to be submitted to the court by a state body to which such a right is granted by law (Clause 3 of Article 61 of the Civil Code of the Russian Federation). At the same time, according to paragraph 2 of Art. 25 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”, the registering authority has the right to apply to the court with a demand for the liquidation of the said partnership in the event of gross violations of the law or other legal acts committed during its creation, if these violations are irreparable, as well as in the case of repeated or gross violations of laws or other regulatory legal acts of state registration of legal entities.
In addition, according to Art. 14.25 of the Code of Administrative Offenses of the Russian Federation for submitting to the body carrying out state registration of legal entities documents containing knowingly false information, if such an action does not contain a criminal offense, shall entail the imposition of an administrative fine on officials in the amount of 50 minimum wages or disqualification for up to three years. According to Art. 171 of the Criminal Code of the Russian Federation, submission to the body that carries out state registration of legal entities and individual entrepreneurs, documents containing knowingly false information, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income in a large amount exceeding 250 thousand rubles.
In accordance with the Decree of the Government of the Russian Federation "On the authorized federal body executive power, which carries out state registration of legal entities, peasant (farm) farms, individuals as individual entrepreneurs" dated May 17, 2002 N 319, the authorized federal executive body that carries out state registration of legal entities, starting from July 1, 2002, is the Ministry Russian Federation for taxes and fees, which, according to Decree of the President of the Russian Federation of March 9, 2004 N 314 22, was transformed into the Federal Tax Service.
The owner of premises in an apartment building is obliged to bear the costs of maintaining the premises he owns, as well as to participate in the costs of maintaining common property in an apartment building in proportion to his share in the right of common ownership of this property by paying a fee for the maintenance and repair of residential premises. The amount of obligatory payments and (or) contributions of members of the homeowners' association associated with the payment of expenses for the maintenance and repair of common property in an apartment building is determined by the governing bodies of the homeowners' association in accordance with the Charter of this partnership.
If the owner of premises in an apartment building in which a homeowners' association has been created has not submitted an application to join this partnership, then the association is obliged to enter into an agreement with such owner on the maintenance and repair of common property in the apartment building. This obligation corresponds to the established part 6 of Art. 155 of the Housing Code of the Russian Federation on the procedure for paying for residential premises and utilities. In accordance with this procedure, owners of premises in an apartment building in which a homeowners association is not members of a homeowners' association pay payment for residential premises and utilities in accordance with the agreements they have concluded with such a partnership.
Proper fulfillment of contractual obligations, as a general rule, is the responsibility of the homeowners association and all its members. The fulfillment of this obligation should be considered broadly in relation to any contracts concluded by the partnership.
The obligation to ensure proper sanitary and technical condition of the common property in an apartment building is implemented within the framework of the agreement concluded by the partnership with managing organization for the provision of services, including the performance of work on the proper maintenance of common property in such a house, the partnership can also enter into separate agreements with persons providing such services and ensures control over their implementation. General control over the use and safety of the housing stock, including the compliance of residential premises with established sanitary and technical rules and norms, is entrusted to public authorities and local government(Art. Art. 3, 12, 13 LC).
The responsibility of the owners of premises in an apartment building for the maintenance and repair of common property in such a building mainly consists of timely payment of expenses for these purposes. In this regard, in an apartment building where a homeowners’ association has been created, such a partnership is obliged to ensure the proper fulfillment of these obligations by all owners. This is achieved by the daily work of the management bodies of the homeowners’ association together with its members, ensuring control and accounting of funds received as payment for the maintenance and repair of common property in an apartment building.
At the same time, the nature of the relationship between the partnership of homeowners and owners who are not members of the partnership remains uncertain. The literature suggests that the homeowners' association will have to enter into separate agreements with them for the maintenance and operation of the house.
There is another opinion, it is based on the fact that the legislator does not make any distinction in the right to common property between members and non-members of a homeowners’ association (Article 249 of the Civil Code of the Russian Federation, Article 36 of the Housing Code of the Russian Federation). At the same time, the maintenance, servicing and repair of common property is a statutory duty of the homeowners’ association; therefore, this activity does not require any additional agreements with the owners. And since the owner does not have the right to separate his share in the ownership of common property (Article 290 of the Civil Code of the Russian Federation, paragraph 4 of Article 37 of the Housing Code of the Russian Federation), that is, common property in kind is not subject to separation and, accordingly, cannot be the subject of an agreement with the owner living space.
Accordingly, it is not clear what an agreement on the maintenance and repair of a share of common property belonging to a specific owner might look like.
If the owners of premises in an apartment building fail to fulfill their obligations to participate in common expenses, the homeowners association in court has the right to demand forced reimbursement of mandatory payments and contributions, and may also demand full compensation for losses caused to the partnership as a result of the failure of the owners of premises in the apartment building to fulfill their payment obligations mandatory payments and contributions, as well as for payment of other general expenses.
To protect the interests of both all owners of premises in an apartment building, and individual owners in such a building, the homeowners association takes the measures necessary to prevent or stop the actions of third parties that complicate or interfere with the implementation of the rights of ownership, use and, within the limits established by law, disposal of common property in such a house, and also represents the legitimate interests of the owners of the premises in relations with third parties. These obligations of a homeowners’ association also stem from the purpose of creating such a partnership, namely from joint ownership, use and, within the limits established by law, disposal of common property in an apartment building. If necessary, the protection and representation of these interests in relations with third parties by the homeowners' association can be carried out by filing a request or complaint by this association with the authorized state bodies or local government bodies, the management bodies of the management organization with which the association has entered into an agreement for the management of an apartment building, as well as a statement of claim to the court or by resolving conflicts between the owners of premises in such a house, considering complaints against the actions of the board of the partnership and its chairman.
3. Funds, property and economic activities of the homeowners association
According to Art. 151 of the Housing Code of the Russian Federation, a homeowners’ association may own movable property, as well as real estate located inside or outside an apartment building. It is advisable to pay attention to the fact that, according to Art. 36 of the Housing Code of the Russian Federation, all property serving more than one room in an apartment building, including technical basements, attics, staircases, etc. (a complete list is presented in Article 36 of the Housing Code of the Russian Federation), is in the common shared ownership of the owners of the premises. This real estate is not subject to alienation, and therefore cannot be transferred to the ownership of the homeowners' association.
The partnership has the right to acquire ownership of premises in an apartment building that are not part of common shared ownership, owned by persons who used them for purposes other than residence (provided that these are non-residential premises, for example, the first floor of a building in which a store is located , dry cleaning, studio, etc.)
In accordance with Art. 16 Federal Law of December 29, 2004 No. 189 - Federal Law "On the entry into force of the Housing Code of the Russian Federation" in the existing development of settlements, the land plot on which an apartment building and other real estate objects included in such a house are located is declared the common shared property of the owners premises in an apartment building. Therefore, such a plot of land cannot become the object of ownership of a homeowners’ association. The exception is cases when the partnership, as a legal entity, owns any premises in the corresponding apartment building. Then the partnership will have a share in the right of common shared ownership of the owners of the premises.
The land plot on which the apartment building and other real estate objects included in such a building are located, which was formed before the entry into force of the Housing Code and in respect of which state cadastral registration was carried out, passes into the common shared ownership of the owners of the premises in the apartment building.
If the land plot on which an apartment building and other real estate objects included in such a building are located was not formed before the entry into force of the Housing Code, on the basis of a decision of the general meeting of owners of premises in an apartment building, any person authorized by the said meeting has the right to apply to government authorities or local authorities with an application for the formation of a land plot on which an apartment building is located. The formation of the land plot on which the apartment building is located is carried out by state authorities or local governments.
From the moment the land plot is formed and its state cadastral registration is carried out, the land plot on which the apartment building and other real estate objects included in such a building are located passes free of charge into the common shared ownership of the owners of the premises in the apartment building.
Apartment buildings and other real estate objects included in such buildings, built or reconstructed after the entry into force of the Housing Code, are accepted by the acceptance committee only when the size and boundaries of the land plots on which such apartment buildings are located are established.
A ban on encumbering the land plot on which an apartment building is located is not permitted if it is necessary to ensure free access of persons to real estate objects that are part of the apartment building and existed before the entry into force of the Housing Code.
Homeowners' association funds consist of:
1) mandatory payments, entrance and other contributions of members of the partnership;
2) income from the economic activities of the partnership, aimed at achieving the goals, objectives and fulfillment of the obligations of the partnership;
3) subsidies to ensure the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies.
4) other income.
Based on the decision of the general meeting of members of the homeowners’ association, special funds may be formed in the association and spent on the purposes provided for in the charter. The procedure for the formation of special funds by the general meeting of members of the partnership.
The board of a homeowners association has the right to dispose of the funds of the association located in the bank account in accordance with the financial plan of the association. The purposes for which these funds can be spent, and the rules for the board of directors to perform actions related to the disposal of such funds, can be defined in sufficient detail in the charter of the partnership or in the regulations on the board, approved by the general meeting.
To achieve the goals provided for by the charter, the homeowners association has the right to engage in economic activities (Part 1 of Article 152 of the Housing Code of the Russian Federation).
A homeowners' association may engage in the following types of business activities:
1) maintenance, operation and repair of real estate in an apartment building;
2) construction of additional premises and common property in an apartment building;
3) renting out, leasing part of the common property in an apartment building.
In addition to economic activities, a homeowners' association has the right to engage in entrepreneurial activities as a non-profit legal entity (Article 50 of the Civil Code of the Russian Federation). The entrepreneurial activity of the partnership must correspond to the goals of creating this commercial organization.
In Art. 152 of the RF Housing Code establishes a closed list of types of economic activities that a partnership can engage in, which cannot change the provision of Art. 50 of the Civil Code of the Russian Federation on entrepreneurial activities of a non-profit legal entity. Renting out the common property of an apartment building must comply with the requirements of the Civil Code of the Russian Federation.
Based on the decision of the general meeting of members of the homeowners’ association, income from the economic activities of the association is used to pay general expenses or is sent to special funds spent for the purposes provided for by the charter of the association. Additional income may be used for other purposes of the homeowners' association's activities.
Chapter ΙΙ. The emergence and termination of a homeowners' association
1. Creation and state registration of a homeowners’ association
Article 136 of the RF Housing Code establishes General requirements to the creation of a homeowners' association and its state registration as a legal entity. It should be taken into account that the Housing Code of the Russian Federation distinguishes two ways to create a homeowners’ association:
By its establishment; in this case, the subject himself, and his rights and obligations arise;
By reorganizing a housing or housing construction cooperative; in this case, succession takes place.
Relations arising regarding the creation of a partnership through the reorganization of a housing or housing construction cooperative are regulated by Art. 122 Housing Code of the Russian Federation.
In turn, Ch. 13 of the Housing Code of the Russian Federation provides for two cases of creating a homeowners’ association by establishing:
In an existing apartment building, persons who are the owners of premises in this building;
In an apartment building under construction, persons who will have ownership rights to the premises in this building.
The procedure for creating a homeowners' association in an apartment building under construction is determined by Art. 139 Housing Code of the Russian Federation.
According to Part 1 of Article 136 of the Housing Code of the Russian Federation, the decision to create a homeowners’ association is made by the owners of premises in an apartment building at their general meeting. The procedure for holding a general meeting of owners of premises in an apartment building and the procedure for making decisions are determined by Art. Art. 45 - 48 Housing Code of the Russian Federation. It should be taken into account that, according to clause 4, part 2, art. 44 and paragraph 2, part 2, art. 161 of the RF Housing Code, the general meeting of owners of premises in an apartment building, before deciding to create a partnership in this building, must first decide on the method of managing this building, in particular, decide on choosing one of the methods of managing the apartment building.
Direct management of premises owners in an apartment building;
Management of a homeowners' association or a housing cooperative or other specialized consumer cooperative created to meet the housing needs of citizens in accordance with the federal law on such a cooperative;
Management of the management organization.
In accordance with Part 1 of Art. 46 of the Housing Code of the Russian Federation, the decision on choosing a method of managing an apartment building is made by a majority vote of the total number of votes taking part in the general meeting of owners of premises in this building. According to Part 1 of Article 136 of the Housing Code of the Russian Federation, in order to make a decision on the creation of a homeowners’ association, a majority of votes is required, not from the votes belonging only to the owners of premises in the corresponding apartment building present at the general meeting, but from the votes of all such owners: as those taking part in such a meeting , never participated in it.
The general meeting of owners of premises in an apartment building must make not only a decision on the creation of a homeowners’ association, but also a decision on approving the charter of the association. In accordance with Part 2 of Art. 135 of the Housing Code of the Russian Federation, the decision to approve the charter of the partnership must be made by a majority vote of the total number of votes of the owners of premises in an apartment building. The results of voting on issues related to the creation of a partnership must be reflected in the minutes of the meeting
An additional requirement established by law is the possibility of creating only one homeowners’ association in one apartment building. This requirement is caused, first of all, by the need to ensure unity and subordination to a single purpose for the use of all elements that make up the common property of the owners of premises in an apartment building (these include load-bearing and non-load-bearing structures of the house, including common walls, foundation, roof, general mechanical, electrical , sanitary and other equipment, land on which the house is located).
The creation of a homeowners' association is provided for:
owners of premises in several apartment buildings that have common networks of engineering and technical support, other infrastructure elements and are located on a common land plot or several adjacent land plots;
owners of residential buildings intended for single-family residence, country houses, garages and other objects that have common networks of engineering and technical support, other infrastructure elements and are located on a common land plot or several adjacent land plots.
At the same time, it is quite obvious that such homeowners’ associations cannot in any way be an association of owners of premises in an apartment building, as provided for general definition, established in Art. 135 Housing Code of the Russian Federation. In addition, it is not clear what should be understood by buildings, structures, and structures located “closely.” For example, can such buildings be understood as the entire dacha or cottage community, houses that may be located at a certain distance from each other, or we're talking about only about country houses or residential buildings located in close proximity (on the same street).
Clause 3 of Art. 49 of the Civil Code of the Russian Federation establishes that the legal capacity of a legal entity arises at the time of its creation, and clause 2 of Art. 51 of the Civil Code of the Russian Federation determines that a legal entity is considered created from the moment of its state registration. Thus, the necessary conditions for the emergence of a homeowners’ partnership as a new legal entity are not only the will of the persons creating it, but also the fact of state registration of such a partnership as a legal entity.
In accordance with Part 3 of Article 136 of the Housing Code of the Russian Federation, state registration of a homeowners' association is carried out in accordance with the legislation on state registration of legal entities.
General rules on state registration of all legal entities are established in Art. 51 Civil Code of the Russian Federation. The unified procedure for state registration of legal entities is currently determined by the Federal Law of August 8, 2001 “On State Registration of Legal Entities and Individual Entrepreneurs”
State registration of legal entities should be understood as an act of an authorized federal executive body, carried out by entering into the state register information on the creation, reorganization and liquidation of legal entities, as well as other information about legal entities in accordance with the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" ". Starting from July 1, 2002, the authorized federal executive body carrying out state registration of legal entities was the Ministry of Taxes of the Russian Federation (currently the Federal Tax Service).
State registration data is included in the Unified State Register of Legal Entities, open to the public. The principles of maintaining the state register, its content, the procedure for providing and conditions for obtaining information contained in the said register are established by Art. 4-7 ch. ΙΙ Federal Law "On state registration of legal entities and individual entrepreneurs". The rules for maintaining the Unified State Register of Legal Entities and providing the information contained therein were approved by Decree of the Government of the Russian Federation dated June 19, 2002 No. 438 “On the Unified state register legal entities"
For state registration of legal entities, a state fee of 2000 rubles is paid (Article 333 33 Chapter 25 3 of the Tax Code of the Russian Federation).
State registration is carried out within no more than five working days from the date of submission of documents to the registration authority. The date of submission of documents is considered the day they are received by the registering authority. Failure to carry out state registration within the established time frame is one of the grounds for legal liability of registering authorities and their officials.
State registration of a legal entity is carried out at the location of the permanent executive body indicated by the founders in the application for state registration - at the location of another body or person having the right to act on behalf of the legal entity without a power of attorney.
Documents are provided to the registration authority by an authorized person directly or sent by post with a declared value when forwarded and a description of the contents. Other methods of submitting documents to the registration authority may be determined by the Government of the Russian Federation.
Requirements for the execution of documents submitted to the registration authority are established by Decree of the Government of the Russian Federation of June 19, 2002 No. 439 “On approval of document forms used for state registration of legal entities and requirements for their execution”
In accordance with Art. 12 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”, upon state registration of a created legal entity, the following is submitted to the registering authority:
a) an application for state registration signed by the applicant in the form, approved by the Government RF;
b) a decision to create a legal entity in the form of a protocol, agreement or other document in accordance with the legislation of the Russian Federation;
c) constituent documents of a legal entity (originals or notarized copies);
d) an extract from the register of foreign legal entities of the corresponding country of origin or other equivalent legal force proof of the legal status of the foreign legal entity - founder;
e) document confirming payment of state duty.
The decision on state registration made by the registration authority is the basis for making a corresponding entry in the Unified State Register of Legal Entities. The moment of state registration is the entry by the registering authority of the corresponding entry into the state register.
The registering authority, no later than one working day from the date of state registration, issues (sends) to the applicant a document confirming the fact of making an entry in the state register. Within no more than five working days from the date of state registration, the registering authority submits information about registration to state bodies determined by the Government of the Russian Federation.
The fact of state registration completes the procedure for creating a homeowners' association and means the emergence of a new legal entity - a subject of civil and housing legal relations.
It is necessary to pay attention to the fact that from July 1, 2002, the tax authority that completed the state registration of a legal entity upon its creation carries out registration of such a legal entity as a taxpayer. Therefore, at the same time, the package of documents for state registration includes an application for registration with the tax authority of a legal entity at its location on the territory of the Russian Federation. A certificate of registration with the tax authority must be issued to a legal entity within five days from the date of state registration.
2. Features of the creation and state registration of a homeowners’ association in apartment buildings under construction
The Housing Code, along with that provided for in Art. 136 of the Housing Code of the Russian Federation with the possibility of creating a homeowners' association by owners of premises in an existing apartment building introduces an additional possibility of creating such an association - in the case when the apartment building is still under construction.
In particular, Part 1 of Article 139 of the Housing Code of the Russian Federation allows for the creation of a homeowners' association by persons who will have ownership of premises in an apartment building under construction.
It should be recognized that the creation of a partnership in an apartment building under construction does not fully correspond to any of the purposes of creating a partnership established by Art. 135 of the Housing Code of the Russian Federation, namely joint management of a complex of real estate, ensuring the operation of this complex, ownership, use and disposal of common property in an apartment building.
Thus, to create a partnership in a house under construction, it is necessary to establish a specific circle of persons who will have ownership of the premises in this house. Therefore, the rights of such a person to participate in making a decision on the creation of a partnership must be certified by specific documents confirming the possibility that in the future such person will have ownership rights to premises in an apartment building in connection with the construction of which the partnership is being created. Only the possession of the specified documents by a specific person serves as a legal fact that gives rise to legal consequences associated with the emergence of his right to participate in the decision to create a partnership. At the moment, such documents, in principle, could only include agreements for participation in shared-equity construction of apartment buildings.
According to Art. 4 Federal Law No. 214-FZ dated December 30, 2004 “On participation in shared construction of apartment buildings and other real estate and on amendments to some legislative acts Russian Federation" under an agreement for participation in shared construction of an apartment building, one party (the developer) undertakes to build (create) an apartment building within the period stipulated by the agreement on its own and (or) with the involvement of other persons and, after receiving permission to put such a house into operation, transfer the premises to this house to a participant in shared construction, and the other party (participant in shared construction) undertakes to pay the price stipulated by the contract and accept the specified premises if there is permission to put such a house into operation. Moreover, in accordance with Article 17 of the said Federal Law, the specified agreement is subject to state registration with the authorities, carrying out state registration of rights to real estate and transactions with it, in the territory of the registration district at the location of the apartment building under construction (created), for the construction of which funds are raised in accordance with this agreement, in the manner prescribed by the Federal Law "On State Registration of Rights to Real Estate" property and transactions with it." That is why such an agreement, registered in the prescribed manner, could be considered a sufficient basis for confirming the right of a specific person - a participant in shared construction - to participate in the decision to create a partnership.
At the same time, attention should be paid to the insufficiently correct approach chosen by the legislator to determining the circle of persons entitled
participate in the decision-making on the creation of a partnership during the construction of an apartment building, since Part 1 of Article 139 of the Housing Code of the Russian Federation provides insufficiently unambiguous criteria for determining such a circle of persons (in particular, specific legal facts are not established, for example, the conclusion of an agreement for participation in shared construction, allowing to unambiguously determine relevant circle of persons). Thus, the article directly indicates the need for the mandatory emergence in the future of ownership of the corresponding premises in a constructed house from the person who participates in the decision to create a partnership (the wording “will belong” is used). At the same time, any agreement providing for the transfer of ownership rights can be terminated, amended or terminated, including in connection with the death of a citizen or liquidation of a legal entity, and, accordingly, the person who, according to the agreement, should have owned the right of ownership of the premises in an apartment building, ultimately such a right will not belong, which excludes the legitimacy of his participation in the decision to create a partnership. This means that at the time of making the decision to create a partnership in a house under construction, it is not possible to accurately determine the specific circle of persons who will have ownership of the premises in such a house due to the impossibility at the time of making the decision to establish all the legal facts indicating the unambiguous emergence of ownership rights for all these persons after the completion of the construction of the house for the premises in this house.
In accordance with Part 2 of Article 139 of the Housing Code of the Russian Federation, the decision to create a homeowners’ association during the construction of an apartment building is made by the persons who will have ownership of the premises in this building after completion of its construction, at their general meeting. This general meeting must be held in the manner prescribed by Art. Art. 45 - 48 Housing Code of the Russian Federation, i.e. in the manner established for holding a general meeting of owners of premises in an apartment building (45 - 48 residential complex). Accordingly, the general meeting of persons who will own the ownership of premises in an apartment building under construction will be competent (have a quorum) if the specified persons take part in it, who will have more than 50% of the votes of the total number of votes that will belong to all future owners of premises in such a house after completion of its construction and commissioning. At the same time, the number of votes that each specified person will have at their general meeting, in accordance with Part 3 of Art. 48 of the Housing Code of the Russian Federation, should be determined in proportion to the future share of each of them in the right of common ownership of common property in a given house. In turn, such a share is determined taking into account Art. 37 Housing Code of the Russian Federation. In particular, a person who will have future ownership rights to premises in an apartment building after completion of its construction and commissioning will own a share in the right of common ownership of common property in such a building, proportional to the size of the total area of the specified premises.
Thus, to create a partnership in a house under construction, it is necessary to establish not only a specific circle of persons who will have ownership rights to the premises in this house, but also specific premises in such a house that will belong to the specified circle of persons, and the total area of each of such premises . Therefore, the rights of such a person to participate in making a decision on the creation of a partnership must be certified by specific documents, not only confirming the possibility that in the future such person will have ownership rights to premises in an apartment building in connection with the construction of which the partnership is being created, but also containing information about the general the area of such a room. In relation to the agreement for participation in shared construction of an apartment building, it should be borne in mind that in accordance with Part 4 of Art. 4 of the Federal Law “On participation in shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation”, the specified agreement must determine the specific object of shared construction to be transferred (a specific premises in an apartment building under construction) in accordance with project documentation. At the same time, according to Art. 25.1 of the Federal Law "On state registration of rights to real estate and transactions with it" for state registration of an agreement for participation in shared construction of an apartment building, along with the documents necessary for state registration in accordance with the said Federal Law, documents describing the premises in the apartment building with indicating its location on the plan of the apartment building being created and the planned area of such premises.
Article 139 of the Housing Code of the Russian Federation does not establish any specifics for the state registration of a homeowners’ association in an apartment building under construction. In particular, part 3 of the above article, as well as part 3 of Art. 136 of the Housing Code of the Russian Federation, which determines the procedure for creating a homeowners’ association in an existing apartment building, contains a provision of reference to the legislation on state registration of legal entities (Article 136 of the Housing Code).
3. Association of homeowners' associations
The creation of a homeowners' association is due to one of the important motives - the owners of premises in an apartment building unite to do together what they cannot do on their own. Organizations that unite with each other also pursue a similar goal. As a result of such an association, coordination of the activities carried out by them is achieved, which ultimately leads to an improvement in the quality indicators of the process of managing these activities and the effective protection of common interests.
In accordance with Part 1 of Art. 135 of the Housing Code of the Russian Federation, a homeowners’ association is a non-profit organization. At the same time, according to paragraph 2 of Art. 121 of the Civil Code of the Russian Federation, non-profit organizations can voluntarily unite. Taking this into account, it is possible for two or more homeowners' associations to create an association of homeowners' associations.
In accordance with paragraph 2 of Art. 121 of the Civil Code of the Russian Federation and clause 2 of Art. 11 of the Federal Law "On Non-Profit Organizations" the association of non-profit organizations is carried out in the form of creating associations (unions) of such organizations. Therefore, the possibility of merging homeowners' partnerships provided for by the Housing Code presupposes the possibility of such partnerships creating associations (unions) of homeowners' partnerships. Essentially, an association (union) of homeowners’ associations can act in relation to the associations that created it as Management Company, performing part management functions voluntarily transferred to it by these partnerships.
Subject to the provisions of Art. Art. 121 - 123 Civil Code of the Russian Federation and Art. 11 of the Federal Law "On Non-Profit Organizations" we can highlight the main features of the legal status (legal status) of associations of homeowners' associations as an association (union) of such partnerships:
An association is a legal entity - one of the forms of non-profit organizations (accordingly, the provisions of the Federal Law “On Non-Profit Organizations” apply to such an association);
The name of the association must reflect the specifics of the association as an association of homeowners' associations and contain the words "association" or "union";
The constituent documents of the association are memorandum of association, signed by representatives of the partnerships creating such an association, and the charter approved by them, which must contain the information specified in clause 2 of Art. 52 and paragraph 2 of Art. 122 Civil Code of the Russian Federation;
The partnerships that created the association become its members, and as members of such an association retain their independence and the rights of a legal entity;
The association is not responsible for the obligations of its members;
Members of an association bear subsidiary liability for the obligations of such an association in the amount and in the manner provided for by its constituent documents;
One of the main sources of formation of the association’s property is the property contributions of its members, the obligation to make which, although not directly established, follows from the meaning of paragraph 2 of Art. 123 Civil Code of the Russian Federation;
The property of the association belongs to it by right of ownership; its members do not have property rights in relation to the property of the association.
In turn, the legal status of a member of an association of homeowners’ associations comes down to the following basic rights and obligations:
A member of the association has the right, at his own discretion, to leave the association at the end of the financial year (in this case, he bears subsidiary liability for the obligations of the association in proportion to his contribution for two years from the date of withdrawal);
A member of an association may be expelled from it by decision of other members of the association in the cases and in the manner established by the constituent documents of the association (in terms of the subsidiary liability of the excluded member, similar rules apply that apply when a member of the association leaves the association);
With the consent of the members of the association, a new member of the association may join it;
A member of the association has the right to use the services (consulting, information, etc.) of the association free of charge.
The management of the association of homeowners' associations must be carried out according to the rules of Ch. 13 of the Housing Code of the Russian Federation, which at the same time contains provisions concerning the legal status of a homeowners’ association, the procedure for its creation, state registration, reorganization, liquidation, and does not regulate relations arising regarding the management of the partnership. It seems that it is more correct to be guided by clause 2 of Art. 122 of the Civil Code of the Russian Federation and clause 3 of Art. 14 Federal Law "On Non-Profit Organizations", where the procedure for managing the activities of such an association, including the composition and competence of the management bodies of such an association, the procedure for making decisions, including issues on which decisions are made unanimously or by a qualified majority of votes of the members of the association, must be established by the constituent association documents.
4. Reorganization and liquidation of the homeowners association
The reorganization of a homeowners' association is carried out on the grounds provided for by civil law.
Reorganization of a legal entity can be carried out in the form of:
Mergers of two or more legal entities into one;
Merger of one or more legal entities to another;
Division of a legal entity into two or more;
Separation from a legal entity of two or more;
Transformation of a legal entity into another legal form.
It should be noted the features of the reorganization of the homeowners' association. Only one homeowners’ association can be created in one apartment building (Article 136 of the Housing Code). Accordingly, a partnership operating in one apartment building cannot be reorganized.
A homeowners' association operating in an apartment building cannot be divided into two or more partnerships, and another homeowners' association cannot be separated from it. This kind of reorganization of the homeowners association will contradict Art. 136 of the Housing Code of the Russian Federation, since two or more partnerships cannot service one apartment building.
As for merger or accession, as indicated, there cannot be two or more partnerships in one apartment building. Therefore, this type of reorganization is not possible in one house. But there is an exception to this rule. In Art. 5 of the previously in force Federal Law "On Associations of Home Owners" it was established that a condominium (this concept does not exist in the new Housing Code) may consist of a separate part of the building measuring at least one block section, having an entrance isolated from other parts of the building and an inter-apartment staircase. elevator node. According to the named Federal law A condominium was recognized as an apartment building, the premises in which are owned by various persons, and the rest of it (common property) is in the common shared ownership of the owners of the premises in this apartment building. Thus, the Federal Law on Homeowners' Associations allowed for the possibility of creating two or more homeowners' associations in one apartment building. Currently, they will have to combine into one partnership by merger or affiliation.
However, a homeowners' association can be created by merging several apartment buildings, the premises in which belong to different owners of premises in an apartment building, located on a common land plot or on several adjacent land plots, with common utility networks and other infrastructure elements
In this case, two homeowners' associations created in two apartment buildings can merge into one homeowners' association through merger or annexation. Conversely, a homeowners association created in two apartment buildings has the right to reorganize through division or separation. These cases exhaust the possibilities for reorganizing homeowners' associations.
A decision on the reorganization of a homeowners’ association can only be made by a general meeting of the association. A decision is considered adopted if more than half of the votes are cast for it.
A homeowners' association is considered reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of the newly formed partnership, since in the case of amalgamation one legal entity remains in its previous form.
When reorganizing a homeowners' association in the form of merging another partnership with it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the affiliated partnership is made in the unified state register of legal entities.
When two or more homeowners' associations merge, the rights and obligations of each of them are transferred to the newly formed association. When a homeowners association merges with another partnership, the rights and obligations of the merged partnership are transferred to the latter.
When a homeowners association is divided, its rights and obligations are transferred to the newly formed associations.
When one or more partnerships are separated from a homeowners' association, the rights and obligations of the reorganized partnership are transferred to each of them in accordance with the separation balance sheet.
The transfer act and separation balance sheet are approved by the general meeting of the homeowners association or the body that made the decision to reorganize the association.
A homeowners' association may be liquidated by a court decision if, during its creation, there were gross violations of the law, if these violations are irreparable, or carrying out activities prohibited by law, or with other repeated or gross violations of the law or other legal acts. A demand for the liquidation of a partnership on these grounds may be brought to court by a state body or local government body, which is granted the right to make such a claim by law.
In this case, the homeowners' association may be liquidated if it is engaged in activities not provided for by the association's charter, or in activities that a non-profit organization does not have the right to engage in.
It should be noted that, as a general rule, a legal entity can be liquidated by decision of its participants. A homeowners' association cannot be liquidated by a general meeting of the homeowners' association. The activities of a partnership are a way of managing an apartment building; the decision to create it and the charter of the partnership are made at a general meeting of owners of premises in the apartment building. Accordingly, a general meeting of owners of premises in an apartment building, and not a general meeting of members of the homeowners association, can liquidate a homeowners association. At present, the number of participants in these meetings may vary, and possibly significantly.
If an apartment building is managed by a homeowners’ association, and the general meeting of the owners of the premises in the apartment building decided to choose a different method of management, then the homeowners’ association must be liquidated, since it cannot manage the apartment building due to the decision of the owners of the premises in this building, and another cannot engage in activities by virtue of law.
The new Housing Code established another one not provided for general rules, the case of liquidation of a homeowners association as a legal entity.
Membership in a homeowners' association is not mandatory, and any owner of premises in an apartment building has the right to leave the association, or after the alienation of the premises, the new owner of the premises may not become a member of the homeowners' association. Consequently, the number of homeowners' association members may be reduced and may have less than half the votes. In this case, the homeowners association cannot manage the apartment building and must be liquidated by the general meeting of owners of the premises in the apartment building.
In both of these cases, the homeowners association is liquidated based on the decision of the general meeting of owners of premises in an apartment building.
The general meeting of owners of premises in an apartment building or members of a homeowners association, which has made a decision to liquidate a legal entity, appoints a liquidation commission and notifies the registration authority of the formation of the liquidation commission, as well as the preparation of an interim liquidation balance sheet. From the moment the liquidation commission is appointed, the powers to manage the affairs of the homeowners’ association are transferred to it.
The liquidation commission publishes in the press, which publishes data on state registration of legal entities, a publication on the liquidation of a homeowners' association, the procedure and deadline for filing claims by its creditors. The deadline for filing claims by creditors cannot be less than two months from the date of publication of the liquidation of the partnership. The liquidation commission takes measures to identify creditors and collect receivables, and also notifies creditors in writing of the liquidation of the partnership.
After completing settlements with creditors, the liquidation commission draws up a liquidation balance sheet, which is approved by the general meeting of the homeowners association or the body that made the decision to liquidate the partnership.
When a homeowners association is liquidated, the property remaining after satisfying the creditors' claims is used to ensure maintenance, technical operation and renovation of an apartment building that was managed by the partnership.
The liquidation of a homeowners' association is considered completed, and the partnership itself ceases to exist after an entry is made in the unified state register of legal entities about its liquidation.
According to Art. 142 of the Housing Code of the Russian Federation, two or more homeowners’ associations can create a homeowners’ association for joint management of common property in apartment buildings. In the event of the liquidation of a homeowners' association, the association of partnerships is similarly liquidated, since as a result of the liquidation of one homeowners' association, the association with another association will not be able to function.
Chapter ΙΙΙ. Legal status of homeowners association members
1. Membership in a homeowners association
The choice by the owners of premises in an apartment building, on the basis of a free expression of will, of such a method of managing an apartment building as partnership management means the exercise of their right to create an association to achieve the above-mentioned goals. A mandatory feature of such an association is membership in it. Only members of this association have the right to participate in the work of its governing body, elect and be elected to its executive body, and also control the activities of both its executive body and the association as a whole.
In accordance with Part 1 of Art. 143 of the Housing Code of the Russian Federation, membership in a homeowners’ association arises from the owner of a premises in an apartment building on the basis of an application to join the homeowners’ association.
This assumes that membership in a homeowners' association arises only as a result of the free will of the owner of premises in an apartment building on the basis of his application, and accordingly, forced membership in homeowners' associations is not permitted by law under any circumstances.
This rule fully takes into account the Resolution of the Constitutional Court of the Russian Federation "In the case of verifying the constitutionality of paragraphs 1, 3 and 4 of Article 32 and paragraphs 2 and 3 of Article 49 of the Federal Law of June 15, 1996 "On Homeowners' Associations" in connection with the request of the Soviet District Court of the city of Omsk" dated April 3, 1998 N 10-P, which was found not to comply with Art. 30 of the Constitution of the Russian Federation, certain provisions of the now repealed Federal Law "On Homeowners' Associations", which provided for mandatory membership in a homeowners' association for owners of premises in an apartment building in which such a partnership was created. When creating a homeowners' association, as in any legal entity that has membership, membership is established by a decision of the constituent meeting, which determines the possibility of creating a partnership and its future composition, approves the charter and resolves other issues. The list of members of the partnership upon creation is compiled on the basis of the minutes of the founding meeting, which is signed by all members of the created partnership.
After the partnership is created, new members are accepted into the partnership based on their applications.
If a homeowners' association has been created in an apartment building, then the persons purchasing premises in this building. The right to become members of the partnership after they acquire ownership of the premises. This provision is established in the imperative norm of Part 2 of Art. 143 of the Housing Code of the Russian Federation, according to this, the charter of a homeowners’ association cannot exclude or limit the right of the owner of premises in an apartment building to join the partnership.
Membership in a homeowners' association is terminated from the moment of filing an application to withdraw from the partnership or from the moment of termination of the ownership right of a member of the partnership to premises in an apartment building (Part 3 of Article 143 of the Housing Code of the Russian Federation). It should be noted that the Housing Code does not provide for the possibility of expelling a member of a partnership from the partnership. It seems that such a possibility cannot be provided for in the charter, if we proceed from the literal interpretation of the above provisions of Part 3 of Art. 143 of the Housing Code of the Russian Federation: here we mean only the voluntary filing of an application for withdrawal from members of the partnership.
2. Management and control bodies in the homeowners’ association
A homeowners' association, like all other legal entities, acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law. Others legal acts and constituent documents (clause 1, article 53 of the Civil Code of the Russian Federation).
Among the governing bodies of the homeowners association Art. 144 of the RF Housing Code names only the general meeting of members of the partnership and the board of the partnership. However, for some reason the legislator here does not mention the chairman of the board of the partnership, whose status is defined in Art. 149 Housing Code of the Russian Federation. Meanwhile, as will be shown below, the chairman of the board is the sole executive body of the partnership, having its own managerial competence and acting simultaneously with the collegial executive body - the board of the partnership.
Lawyers correctly point out the fact that in order to avoid difficulties in the division of competence and in order to protect the rights and interests of third parties, the legislative practice of regulating legal entities created in various organizational and legal forms establishes either a sole executive body, or simultaneously collegial and sole executive bodies. In this case, it is quite obvious that in the homeowners’ association there are two executive bodies operating simultaneously - the board (collegial body) and the chairman of the board. It is necessary to differentiate the management powers of these bodies in the charter of the partnership, while avoiding duplication of their functions and powers.
In practice, one should proceed from the fact that the system of governing bodies in a homeowners’ association is as follows: the general meeting of the members of the partnership, the board and the chairman of the board of the partnership.
Thus, the bodies of the homeowners’ association are formed in a special way - only from members of the association who are at the same time the owners of premises in the apartment building in which such a partnership was created. In other words, in fact, in accepting management decisions and the members of the partnership themselves participate in their implementation. Therefore, we can say that the management of this house is carried out by the members of the partnership themselves, although indirectly - through the bodies of the partnership.
Let's take a closer look at the management and control bodies of a homeowners' association.
General meeting of members of the partnership
The general meeting of members of the homeowners association is the highest governing body of the association (Part 1, Article 145 of the Housing Code of the Russian Federation). Only members of the relevant partnership have the right to participate in the general meeting with voting rights.
In principle, the Housing Code does not define the right to convene a general meeting, allowing in the dispositive norm that such a meeting is convened in the manner established by the charter of the partnership. Meanwhile, when defining the appropriate procedures in the charter, it is necessary to keep in mind a number of imperative norms of the Housing Code that regulate certain relations related to the convening of a general meeting (for example, Parts 1, 2 of Article 146 of the Housing Code of the Russian Federation).
The competence of the general meeting of members of the homeowners association includes performing the following organizational functions:
Amendments to the charter of the partnership - in contrast to the procedure for its adoption when creating a partnership, which provides for the adoption of a decision by the general meeting of owners of premises in an apartment building by a majority vote of the total number of votes of all these owners, changes are made to it on the basis of a decision of the general meeting of members of the partnership, adopted by a majority votes from the total number of votes of the members of the partnership present at this meeting;
Making decisions on the reorganization and liquidation of the partnership, taking into account the grounds and procedure established by civil law; in this case, decisions on these issues are made by a majority - at least 2/3 of the total number of votes of all members of the partnership;
Election of the board of the partnership - from among the members of the partnership for the period established by the charter of the partnership, but not more than for two years; in this case, the decision on this issue is made by a majority vote of the total number of votes of the members of the partnership present at the general meeting;
Election of the audit commission (auditor) of the partnership - for a period of no more than two years; a member of the partnership who is elected to the audit commission of the partnership or as an auditor of the partnership cannot simultaneously be a member of the board of the partnership; a member of the audit commission or an auditor of a partnership does not have to be a member of the partnership; in this case, the decision on this issue is made by a majority vote of the total number of votes of the members of the partnership present at the general meeting;
The formation of special funds of the partnership, including a reserve fund, a fund for the restoration and repair of common property in an apartment building and its equipment, in the manner established by the general meeting of members of the partnership; the purposes for the use (expenditure) of funds must be provided for in the charter of the partnership; the reserve fund can be used to provide for unforeseen expenses and cover losses of the partnership; the fund for the restoration and repair of common property in an apartment building and its equipment can be used for the purposes of major repairs, reconstruction of an apartment building, repair of common property in an apartment building, including equipment; in addition, a decision may be made on the formation of any other special fund, and the decision on the formation of a special fund of the partnership is made by a majority vote of the total number of votes of the members of the partnership present at the general meeting;
Approval of the annual plan on the financial activities of the partnership and a report on the implementation of such a plan - it is assumed that there is a need to annually hold a general meeting of the members of the partnership; The board of the partnership is obliged to draw up the specified documents annually and submit them for consideration to this general meeting; in turn, the audit commission (auditor) of the partnership simultaneously submits conclusions on the specified documents (Articles 150 and 151 of the Housing Code); in this case, approval of the said report and plan is carried out by making a decision by a majority vote of the total number of votes of the members of the partnership present at the general meeting;
Consideration of complaints from members of the partnership against the actions of the board of the partnership and its chairman, the audit commission (auditor) of the partnership;
Adoption and amendment of the internal regulations of the partnership in relation to employees whose duties include servicing an apartment building, provisions on the payment of their labor - these documents are local regulations of the partnership, which should regulate the procedure for hiring and dismissing employees of the partnership, basic rights, duties and responsibilities parties to labor contracts concluded by the partnership with its employees, working hours, rest periods, incentives and penalties applied to the employees of the partnership, other issues of regulating labor relations in the partnership, as well as determine the type and system of remuneration for the employees of the partnership, the size of their salaries, bonuses, other incentive payments; The chairman of the board of the partnership is obliged to develop these documents and submit them for approval by the general meeting of members of the partnership (Article 149 of the Housing Code); in this case, decisions on the adoption and amendment of these documents are made by a majority vote of the total number of votes of the members of the partnership present at the general meeting;
Determining the amount of remuneration for members of the board of directors of the partnership - the amount of such remuneration can be set differentially depending on the scope of duties assigned to each member of the board of directors and the results of their implementation; in this case, decisions on this issue are made by a majority vote of the total number of votes of the members of the partnership present at the general meeting.
The property and legal functions of the general meeting of members of the partnership, directly listed in Part 2 of Article 145 of the RF Housing Code, include the following powers:
By establishing the amount of obligatory payments and contributions of members of the partnership - such payments and contributions constitute the main income part financial plan(budget) of the partnership, in connection with which the calculation of their size must be carried out simultaneously with the preparation of the specified plan for the next year, taking into account the expenditure part included in it, which includes costs associated with payments for utilities, services and work on managing an apartment building , maintenance, current and major repairs of common property in an apartment building; it seems that in order to simplify the calculation of the specific amount of the mandatory payment and contribution of each of the members of the partnership in terms of the maintenance of common property in an apartment building, the established amount of mandatory payments and contributions of the members of the partnership in this part can be correlated with the size of the total area of the premises owned by each member partnership (for example, if 20 rubles per 1 sq. m is established, then the amount of payment of a member of the partnership who owns a premises with a total area of 60 sq. m. will be 1,200 rubles); in this case, decisions on this issue are made by a majority vote of the total number of votes of the members of the partnership present at the general meeting;
On resolving issues related to obtaining borrowed funds, including bank loans, this means that a loan agreement and a credit agreement can be concluded by the board of the partnership or its chairman only on the basis of decisions made by the general meeting of members of the partnership on these issues; the subject of the loan agreement can be both money and things determined by generic characteristics; the subject of a loan agreement can only be funds provided under such an agreement by a bank or other credit institution; the loan agreement refers to real contracts and is considered concluded from the moment of transfer of money or thing(s); the loan agreement is a consensual agreement, and its conclusion entails the obligation of the bank or other credit organization provide funds on time and in the specified amount; The loan agreement and the credit agreement are concluded by the partnership according to the rules of Chapter. 42 Civil Code of the Russian Federation; in this case, decisions on these issues are made by a majority of at least 2/3 of the total number of votes of all members of the partnership;
By determining the directions for using income from the economic activities of the partnership, funds received in the form of income from the economic activities of the partnership are used to pay general expenses or to replenish special funds of the partnership, the funds of which are spent for the purposes provided for by the charter of the partnership; additional income, i.e. income additionally received during the implementation of the annual financial activity plan of the partnership may be used for other purposes specified in the charter of the partnership (Article 152 of the Housing Code); in this case, decisions on this issue are made by a majority of at least 2/3 of the total number of votes of all members of the partnership;
When making decisions on leasing or transferring other rights to common property in an apartment building - when making these decisions, it should be taken into account that in this case the interests of non-members of the partnership of owners of premises in the apartment building in which the partnership was created may be affected, and 3 hours 2 tbsp. 44 of the Housing Code of the Russian Federation, issues related to the transfer for use of common property in an apartment building are within the competence of the general meeting of owners of premises in such a building; in this case, these decisions are made by a majority of at least 2/3 of the total number of votes of all members of the partnership.
I would like to draw attention to the range of issues, in addition to those indicated, that are resolved by the general meeting of members of the homeowners association together with the meeting of owners of premises in an apartment building who are not members of the association. These include, in particular, issues related to repairs, reconstruction of the common premises of the house, superstructure and reconstruction of the house, acquisition of adjacent land plots by the owners of the house, maintenance of them various types construction, etc. All actions affecting the common property in the house, its utilities and equipment, adjacent land plots must be agreed upon with all owners of the residential premises of the house who are not members of the partnership, since they all bear the burden of maintaining the property of the house and have legal rights to this property. In accordance with Art. 247 of the Civil Code of the Russian Federation, shared owners use and dispose of joint property with the consent of all owners.
Certain matters should only be reviewed once a year, but annually. This involves holding a general meeting of the partnership members at least once a year. Such issues include approval of annual financial statements, reports of the audit commission (Article 150 of the RF Housing Code), making decisions on the use of income received by the partnership for the year, etc.
Issues within the competence of the general meeting of members of the homeowners’ association cannot be resolved either by the collegial or by the sole executive body of the association. In relation to the board of directors, a direct ban has been established (Part 1 of Article 147 of the RF Housing Code), and the competence of the chairman of the board of directors is limited by the norms of Art. 149 Housing Code of the Russian Federation.
At the same time, taking into account the special position of the general meeting of members of the partnership as the highest governing body of the partnership, Part 4 of Article 145 of the RF LC provides for the possibility of resolving issues within the competence of the executive body of management of the partnership - the board of the partnership
The procedure for organizing and holding a general meeting of members of the homeowners association is defined in Art. 146 Housing Code of the Russian Federation. At the same time, according to Art. 148 of the RF Housing Code, convening and holding a general meeting falls within the competence of the board of the partnership.
Notification of a general meeting of members of a homeowners' association is sent in writing to the persons on whose initiative the general meeting is convened, and is given to each member of the association against signature or by mail (registered mail). The notice is sent no later than 10 days before the date of the general meeting.
The notice of a general meeting of members of the partnership shall indicate information about the person on whose initiative the general meeting is convened, the place and time of the general meeting, and the agenda for the general meeting. The general meeting of members of the homeowners association does not have the right to bring up for discussion issues that were not included in the agenda.
The powers of the general meeting of members of the homeowners association are established in accordance with Art. 45 of the Housing Code of the Russian Federation and the charter of the partnership. The general meeting of members of a homeowners association is valid (has a quorum) if more than half of the members of the association or their representatives are present.
Decisions of the general meeting of members of the partnership on certain issues can be made by a simple or qualified majority of votes. According to Part 4 of Art. 146 of the Housing Code of the Russian Federation, decisions of the general meeting of members of the homeowners’ association on a number of particularly significant issues are adopted by at least two-thirds of the votes of the total number of votes of the members of the association. In particular, decisions on the issues specified in clauses 2, 6, 7, 12, part 2, art. 145 of the Housing Code of the Russian Federation (related to the reorganization and liquidation of a partnership, obtaining borrowed funds, including bank loans, using income from the economic activities of the partnership, leasing or transferring other rights to common property in an apartment building), must be accepted at least 2 /3 votes from the total number of votes of all members of the partnership (their representatives), i.e. qualified majority of votes.
In addition, it is not prohibited to provide in the charter of the homeowners’ association other issues that can only be resolved by a qualified majority of votes.
Decisions on other issues are made by a simple majority of votes from the total number of votes of the members of the partnership or their representatives present at the general meeting.
The general meeting of members of the partnership is chaired by the chairman of the board of the partnership or his deputy. In case of their absence, the general meeting is chaired by one of the members of the board of the partnership.
The charter of a homeowners' association may provide for voting by means of a written survey or voting by groups of members of the association, depending on the type (residential or non-residential) of the premises they own in an apartment building and the issues being resolved.
In this regard, in the legal literature, an opinion was expressed that the provision on grouping members of a homeowners’ association for voting is insufficiently justified: the rights and obligations of all members of the association are the same, and the separation of some members into a separate group will clearly infringe on the rights of the remaining members of the association, or vice versa .
In order to avoid violation of the rights of members of the partnership, the charter must contain a precisely defined range of issues that can be resolved through absentee voting. General annual meeting members of the partnership should be carried out only in full-time. Only intermediate and extraordinary general meetings and on issues specified by the charter can be held by absentee voting, if the charter of the partnership provides for such a form of holding general meetings. If the charter allows the holding of general meetings of members of the partnership through a written survey, then it is necessary to clearly develop the procedure for holding such meetings.
Homeowners association board.
The board of a homeowners association is a collegial executive body of the partnership, accountable to the general meeting of members of the homeowners association, which manages the activities of the partnership. The board has the right to make decisions on all issues of the partnership’s activities, with the exception of issues falling within the exclusive competence of the general meeting of owners of premises in an apartment building and the competence of the general meeting of members of the homeowners’ association.
The board of a homeowners' association is elected from among the members of the association by the general meeting of members of the association for the period established by the charter of the association, but not more than for two years. Thus, for example, owners of premises in an apartment building who are not members of the homeowners’ association cannot be elected to the board. In addition, persons who are members of the audit commission of this partnership cannot be members of the board (Part 1 of Article 150 of the RF Housing Code).
In accordance with Part 3 of Art. 147 of the Housing Code of the Russian Federation, the board of a homeowners’ association elects the chairman of the partnership from among its members. In fact, we are not talking about the chairman of the partnership, but about the chairman of the board of the partnership, whose status as the sole executive body is defined in Art. 149 Housing Code of the Russian Federation.
In this regard, reputable lawyers rightly point out that the above provisions of the Housing Code contradict general order formation of executive bodies. One executive body does not have the right to create another executive body, especially since both control the activities of each other.
The chairman of the board is the sole executive body, and not a rotating chairman, vested with purely organizational functions related to convening and conducting board meetings. As an executive body, the chairman is responsible to the general meeting for his activities, which also determines his election by the meeting and not by the board (the formation of executive bodies falls within the competence of the highest management body of the partnership - Part 2 of Article 145 of the RF Housing Code). Therefore, it appears that Art. 145 and 147 of the Housing Code of the Russian Federation, it is necessary to make changes relating to the election of the chairman of the board of a homeowners’ association and the competence of the general meeting of members of the association.
Meetings of the board of a homeowners association are convened by the chairman of the board within the time limits established by the charter of the partnership. A meeting of the board of a partnership is recognized as valid if a majority of the members of the board of the partnership (that is, more than half of its members) take part in such a meeting. The decision of the board of the homeowners association is documented in minutes. It is advisable to regulate in detail the procedure for the activities of the board of directors in the charter of the partnership or in a special local act type of regulation on the board. Such an act may be approved at a general meeting of members of the partnership.
Among the responsibilities of the board of homeowners association art. 143 of the RF Housing Code refers to the resolution of issues, an approximate list of which is defined in this article. The term “responsibilities” is not entirely correct in this context: in fact, we are talking about the powers of the board (that is, the rights, the implementation of which is at the same time the legal responsibility of the executive body), which form the managerial competence of the board of the homeowners’ association. So, the powers of the board are:
Implementation in general of all decisions of the general meeting of members of the partnership;
Operational management of the current activities of the partnership;
Drawing up income and expense estimates and reports of the partnership, submitting them for approval by the general meeting of its members;
Disposal of tangible and intangible assets of the partnership to the extent necessary to ensure its current activities and in accordance with the approved estimate;
Organizational and technical support for the activities of the general meeting of members of the partnership, including the convening of this meeting and the organization of its holding;
Organizing accounting and reporting of the partnership, preparing an annual plan, budget, annual report and submitting them for approval by the general meeting of members of the partnership;
Ensuring the partnership's paperwork and maintaining its archive;
Organization of protection of partnership property and common property in an apartment building;
Organization of construction, repair and maintenance of common property in an apartment building in accordance with the decisions adopted by the general meeting of members of the partnership;
Hiring persons to the partnership under employment contracts, dismissing them, encouraging and imposing penalties on them, maintaining records of the partnership's employees;
Control over the timely payment by members of the partnership of mandatory payments and contributions;
Conducting transactions on behalf of the partnership related to the management of an apartment building;
Maintaining lists of partnership members;
Ensuring compliance by the partnership with the legislation of the Russian Federation and the requirements of its charter;
Representing the interests of the partnership in court, government agencies, local governments, public and other organizations;
Consideration of applications from members of the partnership;
Preparation of amendments and additions to the charter of the partnership, taking into account the decision adopted by the general meeting of members of the partnership;
Renting for use of common property in an apartment building in accordance with the conditions and requirements established by the general meeting of members of the partnership in relation to specific such objects.
Chairman of the Board of Homeowners Association
The chairman of the board of a homeowners' association can only be a person who is the owner of the premises in the apartment building in which this partnership was created, who has become a member of such a partnership and is a member of the board of such a partnership, since the chairman of the board of the partnership is elected by members of the board of the partnership from among its members
In accordance with Article 149 (clause 1), a person can exercise the powers of the chairman of the board of the partnership after his election to this position only within the period established by the charter of the partnership. At the same time, time limits given period cannot go beyond the time limits for electing the board of the partnership, since the chairman of the board of the partnership is at the same time a member of the board of the partnership, and, accordingly, his powers terminate with the expiration of the term for electing the board of the partnership (even if the board of the partnership is re-elected with the same composition). In accordance with Part 2 of Art. 147 of the Housing Code of the Russian Federation, the period for such election is also established by the charter of the partnership, but cannot be more than two years.
The chairman of the board of the partnership is not the management body of the partnership, since Art. 144 of the Housing Code of the Russian Federation classifies only the general meeting of members of the partnership and the board of the partnership as the governing bodies of the partnership.
The chairman of the board of a partnership has the right to act on behalf of the partnership without a power of attorney, sign payment documents and make transactions that, in accordance with the law and the charter of the partnership, do not require mandatory approval by the management bodies of the partnership.
Based on clause 3 of Art. 53 of the Civil Code of the Russian Federation, the chairman of the board of a partnership, performing these functions, must act in the interests of the partnership in good faith and reasonably and is obliged, at the request of the members of the partnership, to compensate for losses caused by him to the partnership.
The category “conscientiousness and reasonableness of actions” has an evaluative nature, since only an evaluative interpretation can be used, for example, of the actions of the chairman of the board for compliance with the will developed by the management body of the partnership. This leads to the fact that in practice, in most cases, it is quite difficult to prove bad faith and unreasonableness of the chairman of the board of the partnership. Therefore, it seems that the main powers of the chairman of the board of the partnership, in particular the rights to carry out transactions on behalf of the partnership, should be as specific as possible in the charter of the partnership.
The chairman of the board of the partnership is entrusted with administrative duties under Article 149 of the RF Housing Code. production functions.
In particular, the chairman of the board of the partnership ensures the implementation of decisions of the board of the partnership, and also gives instructions and orders to the officials of the partnership, the execution of which is mandatory for them. In this case, we mean persons hired under employment contracts to work in a partnership and subordinate to the chairman of the board of the partnership by virtue of their job responsibilities.
The chairman of the board of the partnership must develop and submit for approval to the general meeting of members of the partnership the internal regulations of the partnership in relation to the employees of the partnership. Internal rules labor regulations partnership is a local regulatory act of the partnership, regulating, in accordance with the Labor Code of the Russian Federation and other federal laws, the procedure for hiring and dismissing employees of the partnership, the basic rights, duties and responsibilities of the parties employment contract agreement concluded by the partnership with its employees, working hours, rest periods, incentive and penalty measures applied to the employees of the partnership, as well as other issues of regulating labor relations in the partnership.
It should be noted that the list of powers of the chairman of the board of a partnership specified in the Housing Code is closed, since the Housing Code of the Russian Federation does not provide for the possibility of expanding them, for example, by the charter of the partnership. Therefore, the chairman of the board of the partnership, outside the limits of his powers established by Article 149 of the Housing Code of the Russian Federation, has the right to act in resolving current issues of the activities of the partnership only on behalf of the board of the partnership, expressed in its decision.
Audit committee
The control body in all homeowners' associations is the audit commission (auditor). This body is not one of the management bodies of the partnership: it does not carry out organizational and executive-administrative activities, but implements only one specific management function - control over the financial and economic activities of the partnership, the so-called internal audit.
The audit commission (auditor) of a homeowners' association is elected by the general meeting of members of the association for no more than two years. The audit commission of a homeowners' association cannot include members of the board of directors of the association (Part 1, Article 150). The Housing Code of the Russian Federation leaves entirely to the discretion of the general meeting of members of the partnership the decision on the choice of the form of organization of control: the choice of the audit commission of the partnership as a collegial control body or the preference for the sole auditor of the partnership, without in any way connecting such a choice with the quantitative parameters of the partnership itself. At the same time, the Housing Code of the Russian Federation also does not provide for requirements for the quantitative composition of the audit commission of the partnership. Accordingly, the question of the specific quantitative composition of such a commission has the right to be decided by the general meeting of members of the partnership. At the same time, it is quite obvious that this commission must consist of at least three people, since Part 2 of Article 150 of the RF Housing Code establishes the requirement that the audit commission of the partnership elect the chairman of the commission from among its members. However, taking into account the scope of financial issues controlled by the audit commission of the partnership, the general meeting of members of the partnership has the right to establish a different number of the partnership’s control body, for example, five, seven or more people.
The audit commission of the homeowners association elects the chairman of the audit commission from among its members. The chairman of the audit commission is not an independent control body; his main task is organizational and technical support for the activities of the audit commission.
Audit commission (auditor) of the homeowners association:
1) conducts audits of the financial activities of the partnership at least once a year;
2) presents to the general meeting of members of the partnership a conclusion on the estimate of income and expenses for the corresponding year of the partnership and a report on financial activities and the amount of mandatory payments and contributions;
3) reports to the general meeting of members of the partnership on its activities.
Conclusion
As you know, the new Housing Code of the Russian Federation, a normative act of such importance, rightfully aroused the closest public attention and numerous discussions even at the stage of legislative work on it. Today, when the entry of the new Housing Code into Russian legislation has become a fait accompli, its provisions again require the most careful analysis in various aspects.
Thus, an analysis of the content of Chapter I suggests that serious difficulties in law enforcement practice may arise when resolving issues related to the interaction of the norms of the Housing Code and the Civil Code of the Russian Federation.
This is expressed in unclear regulation of relations between the homeowners’ association and the remaining owners of premises in an apartment building who are not included in the association.
So, paragraph 3 of Art. 45 of the Housing Code states that decisions made at a general meeting with the consent of the owners of premises in an apartment building or their representatives holding more than 50 percent (and in some cases 2/3) of the votes of the total number of owners in an apartment building are binding on all owners in this building .
Thus, in order to carry out actions for the disposal and use of common property, the Housing Code does not require the consent of all owners of premises and thereby conflicts with paragraph 1 of Art. 246 and paragraph 1 of Art. 247 of the Civil Code, according to which the use and disposal of property in shared ownership is possible only by agreement of all its participants. This circumstance represents a very significant conflict between the norms of the Civil and Housing Codes. In practice, the consent of such owners must be in writing. The same procedure applies to the right to customize and rebuild part of the common property in an apartment building.
Due to the fact that not all owners of premises in an apartment building can become members of the partnership when it is created. Those who do not wish to become a member of the partnership, as a result, choose the method of managing their property themselves. The homeowners association has no right to impose its services.
Therefore, the provisions of paragraph 2 of Art. 138 and paragraph 6 of Art. 155 of the Housing Code of the Russian Federation, which prescribe the conclusion of agreements on the maintenance and repair of common property with owners who are not members of the partnership. Firstly, the legislator does not make any distinction in the right to common property between members and non-members of the HOA (Article 249 of the Civil Code of the Russian Federation, Articles 36, 39 of the Housing Code of the Russian Federation). Secondly, if the maintenance, maintenance and repair of common property is the statutory responsibility of the HOA, then no additional agreements with the owners are required to carry out this activity. Thirdly, the owner does not have the right to separate his share in the ownership of common property (Article 290 of the Civil Code of the Russian Federation, paragraph 4 of Article 37 of the Housing Code of the Russian Federation), i.e. common property in kind is not subject to allocation and, accordingly, cannot be an independent subject of an agreement with the owner of the residential premises. Consequently, it is unclear what an agreement on the maintenance and repair of a share of common property belonging to a specific owner might look like. In our opinion, these provisions of the Housing Code of the Russian Federation are subject to amendment or exclusion.
In their activities, homeowners' associations are faced with the problem of low budgetary discipline in the compensation of benefits and subsidies for housing and communal services. At the local level, a mechanism for compensating benefits for members of homeowners' associations has not yet been developed. When analyzing the provisions governing the process of creating a homeowners' association, it is clear that future members of the homeowners' association may find themselves in the following situation. Municipal authorities must transfer houses in proper condition to homeowners' associations. This issue is already regulated by the Law on Privatization of Housing Stock. When a homeowners' association is organized, it takes the balance sheet of the house from the balance holder, from the owner - the municipality, according to the technical condition report. And here it depends on the association - how competently the association of homeowners and its specialists will accept this residential building and be able to prove that proper repair work was not carried out, that the common property was not repaired. There is a court for this. If the homeowners' association wins, they can require the municipality to set aside funds in the municipal budget for the renovation of their home.
Having examined the legal status of homeowners' associations, taking into account the identified problems, we can conclude that in legal regulation There are certain shortcomings in the legal status and activities of homeowners' associations. However, in conditions where almost all owners are faced with a strict time frame to decide how to manage and maintain their property, it seems that a homeowners association is best option management of an apartment building.
Only in homeowners' associations can we talk about such unity among residents in order to demand the exercise of their rights; this is an organization that will defend the interests of owners.
In addition, the homeowners' association, being a legal entity, is able not only to manage the funds received from rent, but also to earn additional money, which will be used for the improvement of housing. The homeowners' association, by decision of the general meeting, has the right to earn money by renting out common property.
List of literature, regulations and judicial arbitration practice
Ι. Regulatory acts.
2. Housing Code of the Russian Federation dated December 29, 2004 No. 188-FZ as amended. from Federal Law dated December 31, 2005 No. 199-FZ//SZ RF. 2005. No. 1 part Ι. Art. 14.
3. Code of the Russian Federation on Administrative Offenses Federal Law of December 30, 2001 No. 195-FZ as amended. Federal Law No. 7-FZ dated January 15, 2006 // SZ RF. 2002. No. 1 part Ι. Art. 1.
4. Land Code of the Russian Federation dated October 25, 2001 No. 136-FZ as amended. Federal Law No. 15-FZ dated 03/07/2005 // SZ RF. 2001.
5. Tax Code of the Russian Federation: Part 1 of 05.08.2000 No. 117-FZ as amended. Federal Law No. 16-FZ dated January 10, 2006 // SZ RF. 2000. No. 32. Art. 3340.
6. Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ ed. Federal Law No. 11-FZ dated January 09, 2006 // SZ RF. 1996. No. 25. Art. 2954.
7. Civil Code of the Russian Federation: Part 1. dated November 30, 1994 No. 1-FZ ed. Federal Law No. 18-FZ dated January 10, 2006 // SZ RF. 1994. No. 32. Art. 3301.
8. Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”// Russian newspaper dated December 31, 2004. No. 292.
9. Federal Law of December 29, 2004 No. 189-FZ “On the implementation of the Housing Code of the Russian Federation” as amended. and additionally introduced by the Federal Law of December 28, 2005 No. 184-FZ//Rossiyskaya Gazeta of January 12, 2005. No. 1; December 29, 2005 No. 294.
10. Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs” as amended. Federal Law dated July 2, 2005 No. 83-FZ//SZ RF. 2001. No. 33. part Ι. Art. 3431; 2005. No. 27. Art. 2722.
11. Resolution of the Constitutional Court of the Russian Federation dated 04/03/1998 No. 10-P “In the case of verifying the constitutionality of paragraphs 1, 3 and 4 of Article 32, paragraphs 2 and 3 of Article 49 of the Federal Law of June 15, 1996 “On Homeowners’ Associations” in connection with request of the Sovetsky District Court of the city of Omsk"//NW RF 1998. No. 15. Art. 1794.
12. Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it,” as amended. Federal Law dated December 31, 2005 No. 206-FZ // "Rossiyskaya Gazeta" dated July 30, 1997. No. 145; 12/31/2005. No. 297.
13. Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” as amended. Federal Law No. 18-FZ dated January 10, 2006//SZ RF. 1996. No. 3. Art. 145; Russian newspaper dated January 17, 2006. No. 6.
Law of the Russian Federation dated July 4, 1991 No. 1541-1 “On the privatization of housing stock in the Russian Federation,” as amended. Federal Law dated December 29, 2004 No. 189-FZ // Gazette of the RSFSR 1991. No. 28. Art. 959; NW RF. 2005. No. 1 part Ι. Art. 15.
14. Decree of the President of the Russian Federation dated March 9, 2004 No. 314, as amended. and additionally introduced by Decree of the President of the Russian Federation dated December 23, 2005 No. 1522 // Rossiyskaya Gazeta dated March 12, 2004. No. 50; December 29, 2005. No. 294.
15. Decree of the Government of the Russian Federation dated May 16, 2003 No. 630 “On the Unified State Register of Individual Entrepreneurs, the rules for storing documents (information) in the unified state registers of legal entities and individual entrepreneurs and transferring them for permanent storage to state archives, as well as making changes and additions to the Decree of the Government of the Russian Federation of June 19, 2002 No. 438" as amended. and additionally introduced by Decree of the Government of the Russian Federation of February 26, 2004 No. 110//SZ RF 2003. No. 43. Art. 4238; 2004. No. 10. Art. 864.
16. Decree of the Government of the Russian Federation dated June 19, 2002 No. 439 “On approval of forms and requirements for the execution of documents used for state registration of legal entities, as well as individuals as individual entrepreneurs,” as amended. and additionally introduced by Decree of the Government of the Russian Federation of February 20, 2004 No. 110 // SZ RF. 2002. No. 26. Art. 2586; 2004. No. 10. Art. 864.
17. Decree of the Government of the Russian Federation dated May 17, 2002 No. 319 “On the authorized federal executive body carrying out state registration of legal entities, peasant (farm) households, individuals as individual entrepreneurs” as amended. and additionally introduced by the Federal Law of September 16, 2003 No. 131-FZ//SZ RF. 2002. No. 20. Art. 1872; 2003. No. 40. Art. 3822.
18. Order of the Ministry of Land Construction of the Russian Federation dated August 3, 1998 No. 35 “On approval model charter Homeowners' Association" // Construction Equipment Bulletin No. 1. 1999.
ΙΙ. Judicial and arbitration practice
19. Resolution of the Supreme Plenum Arbitration Court RF dated March 24, 2005 No. 14 “On some issues related to the application of land legislation” // Bulletin of the Supreme Arbitration Court of the Russian Federation 2005. No. 5.
20. Resolution of the Plenum of the Armed Forces of the Russian Federation dated August 24, 1993 No. 8 “On some issues of application by courts of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation” as amended by the resolutions of the Plenum of the Armed Forces of the Russian Federation dated December 21, 1993 (as amended, introduced by the resolution of the Plenum of the Supreme Court of the Russian Federation dated February 24, 2005 No. 3); dated October 25, 1996 No. 10 (as amended by the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 20, 2003 No. 2) // Bulletin of the Supreme Court of the Russian Federation 1993. No. 11; 1994 No. 3; 1997. No. 1; 2003. No. 3; 2005. No. 4.
ΙΙΙ. Literature
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24. Goncharov A.A., Yu.G. Poponov Civil law. General and Special parts. Textbook. M., KNORUS. 2005.
25. Civil law. In 2 volumes. Volume 1: Textbook 2nd ed. reworked and additional / Ed. Doctor of Law Professor E.A. Sukhanov. Statute. 2005.
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31. Kichikhin A.N., Martkovich I.B., Shcherbakova N.A. Housing rights. Use and ownership. M., Lawyer. 2005.
32. Commentary on the Civil Code of the Russian Federation, part one (article-by-article). Ed. 2nd, rev. and additional / Ed. HE. Sadikov. M., Law firm"Contract" Infra-M. 2003.
33. Commentary on the Federal Law “On Non-Profit Organizations” / Ed. M.Yu. Tikhomirov. M., Ed. Tikhomirova M.Yu. 2003.
34. Krasheninnikov P.V. The Housing Code has come into force. How will he act? // Rossiyskaya Gazeta. 2005. March 1.
36. Krashennikov P.V. Ownership and other proprietary rights to residential premises. M., Statute. 2004.
37. Makarov G. Legal status of homeowners’ associations and the procedure for their formation//Economy and Law. 2005. No. 4-7.
38. Molchanova T.D., Markova r. So as not to be lost alone, unite // Volzhsky Automobile Builder. 2005. No. 22.
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41. Article-by-Article Commentary on the Housing Code of the Russian Federation/Under. ed. P.V. Krasheninnikova. M., Statute, 2005.
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Paragraph 2 of Chapter 4 of the Civil Code of the Russian Federation talks about business partnerships, which are commercial organization. It would seem that a homeowners' association (hereinafter - HOA) belongs to the category of legal entities provided for in Art. 66 - 86 of the Civil Code of the Russian Federation, but do not forget that in addition to the Civil Code of the Russian Federation there are others regulations. What is a homeowners association?
The concept of HOA is disclosed in Art. 135 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation), according to which it is not at all an organization whose goal is to make a profit, but, on the contrary, is a non-profit organization. The purpose of the association of owners of residential premises in apartment buildings is to manage a complex of real estate in an apartment building, ensure the operation of this complex, ownership, use and, within the limits established by law, disposal of common property in an apartment building (Clause 1 of Article 135 of the RF Housing Code).
Like any other legal entity, the HOA is endowed with rights and responsibilities by law, but all of them exist within the framework of the implementation of the norms of the Housing Code of the Russian Federation. For example, in Art. 137 of the Housing Code of the Russian Federation lists the rights of HOAs, which boil down to management, maintenance, ownership, use and disposal of a complex of real estate. That is, the HOA can carry out its activities exclusively in the area established by current legislation. Article 138 of the Housing Code of the Russian Federation provides for the responsibilities of the HOA, which include:
- entering into contractual relations related to the maintenance and repair of common property in an apartment building with owners of residential premises who are not members of the HOA;
- ensuring that all owners of premises in an apartment building fulfill their responsibilities for the maintenance and repair of common property in an apartment building in accordance with their shares in the common ownership of this property;
- ensuring compliance with the rights and legitimate interests of the owners of premises in an apartment building when establishing the conditions and procedure for ownership, use and disposal of common property;
- taking measures necessary to prevent or terminate actions of third parties that impede or prevent the implementation of the rights of ownership, use and, within the limits established by law, of the owners of premises with common property in an apartment building;
- representation of the legitimate interests of owners of premises in an apartment building, including in relations with third parties.
Thus, the HOA is a legal entity whose purpose is not to make a profit, carrying out its activities in the field of management and ensuring the operation of a complex of real estate in an apartment building, as well as owning, using and disposing of common property in an apartment building within the limits established by law.
PROCEDURE FOR CREATION OF HOA
The procedure for creating an HOA is provided for in Art. 135 and 136 of the RF Housing Code. Actually, it is not much different from the procedure for creating legal entities of other organizational and legal forms. According to current legislation, the decision to create a partnership and its charter are made at a general meeting. At the same time, the number of owners of residential premises who voted for the creation of an HOA must exceed 50% of the total number of votes of owners of premises in an apartment building (clause 3 of Article 135 of the Housing Code of the Russian Federation). It is this situation that pushes unscrupulous “comrades” to commit crimes. As the practice of prosecutorial inspections of the implementation of housing legislation shows, often the number of residential property owners who actually voted for the creation of an HOA differs significantly from the data indicated in the minutes of the meeting. For example, the prosecutor's office of Zelenogradsky administrative district established during an inspection of compliance with housing legislation in the Grand homeowners association that, according to information from the owners of residential premises in an apartment building at the address: Zelenograd, bldg. 914, 915, 916, 917, the number of persons who voted for the decision to create a HOA differs from the data indicated in the minutes of the general meeting (information obtained on the website of the Moscow Prosecutor's Office mosproc.ru).
The problem is that HOAs created by falsifying voting results are registered in accordance with current legislation and from the moment they are entered into the Unified State Register of Legal Entities they acquire legal capacity and capacity. False HOAs carry out their activities, and sometimes no one realizes that they are managing common property contrary to the interests of their “comrades.”
IT'S EASIER TO WARN THAN...
According to Art. 21 of the Federal Law "On the Prosecutor's Office of the Russian Federation" prosecutors supervise the implementation of the law, and they carry out appropriate checks based on received information about facts of violation of laws that require the prosecutor to take action. This allows us to conclude that identifying HOAs created in violation of the requirements of the law is only possible if interested parties contact the prosecutor’s office, since prosecutors will not monitor the implementation of the law on their own initiative. That is, persons who believe that in the process of creating an HOA their rights and legitimate interests were violated and the provisions of the current housing legislation were not observed should file a complaint or statement with the prosecutor's office.
What if the owners of residential premises in apartment buildings for some reason did not contact the prosecutor's office? How many HOAs created in violation of the law will operate?
It seems that it is easier to prevent the emergence of semi-legal HOAs than to fight them. For example, in the Cheryomushka region alone, 37 HOAs were identified that were created in violation of current legislation (mosproc.ru). If an independent person had participated in the process of holding the meeting, there would have been significantly fewer violations. If there were a special and independent commission, the participants of which would be present at the general meeting of owners of residential premises in apartment buildings. Members of the commission would check whether all owners of residential premises in apartment buildings were notified of the general meeting, the attendance of owners of residential premises, compliance with the rules for holding a general meeting and maintaining minutes, the number of pros and cons of creating a HOA. It seems that the creation of independent commissions under government bodies does not make sense. Since corruption exists in all spheres, a public organization would probably be best able to cope with the task of preventing the creation of semi-legal HOAs.
PROSECUTORS AGAINST HOA
In accordance with Art. 141 of the Housing Code of the Russian Federation, the HOA is liquidated in the manner established by the Civil Code of the Russian Federation. So, according to Art. 61 of the Civil Code of the Russian Federation, an HOA can be liquidated by a court decision in the event of gross violations of the law committed during its creation, if these violations are of an irreparable nature, or carrying out activities without proper permission (license), or prohibited by law, or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts. It is the identification of gross violations of the law committed during the creation of the HOA, which are of an irreparable nature, that is the reason for the liquidation of the HOA on the initiative of prosecutors.
Prosecutors, when identifying violations of the law, go to court with statements of claim for the liquidation of the HOA, the grounds and subject of which are often repeated.
Thus, in all cases when prosecutors filed claims in court, the subject of the claim was the recognition of the minutes of the general meeting of owners of residential premises in apartment buildings as invalid and the liquidation of the HOA. The subject of the claim is the same in all cases, but the analysis judicial practice and the practice of prosecutorial supervision over the implementation of housing legislation shows that different grounds are given in statements of claim.
In some cases, the minutes of a general meeting of owners of residential premises in apartment buildings are declared invalid due to the fact that the majority of owners of residential premises in an apartment building voted against the creation of an HOA, but the minutes of the general meeting reflect the fact that more than 50% of the owners voted for the creation of an HOA residential premises.
In other cases, the minutes of the general meeting of owners of residential premises in apartment buildings are declared invalid due to the fact that the majority of owners of residential premises did not take part in the voting or were not notified at all about the general meeting. Thus, the basis for declaring the protocol invalid and liquidating the HOA is gross violation law, namely non-compliance with the provisions of Art. 44 - 48, 136 and 146 Housing Code of the Russian Federation. By this basis In the Cheryomushki region alone, 37 civil cases were initiated at the request of the prosecutor. The subject of these 37 claims is the invalidation of the protocols of the general meeting of owners of premises in apartment buildings, held in the form of absentee voting, certificates of state registration of a legal entity, entries in the Unified State Register of Legal Entities (USRLE), and the liquidation of HOAs.
However, when filing claims, the subject and grounds of which are indicated above, prosecutors often face serious problems. Courts often refuse to accept claims if they are filed in the interests of a single owner of a residential premises, if he does not belong to the category specified in Art. 45 Code of Civil Procedure of the Russian Federation. That is, according to the logic of the servants of Themis, the prosecutor has the right to appeal statement of claim to invalidate the minutes of the meeting and liquidate the HOA only on the condition that the injured owner of the residential premises cannot independently go to court due to health reasons, age, incapacity or other valid reasons.
