Entry into the sro after exclusion. What to do if the SRO is excluded from the register. Exclusion of the cadastral engineer from the deadline for reasons

At the beginning of the summer of this year, Rostechnadzor published on the official website the results of inspections of the activities of SROs. Let us recall that 5 SROs were brought to administrative responsibility for failure to comply with information openness, 3 SROs were brought to administrative responsibility for violating the deadlines for eliminating comments, and one SRO was excluded from the state register of self-regulatory organizations out of court.

What will happen to the members of these SROs if they do not eliminate the violations and are excluded from the SRO register? The Self-Regulation portal asked Galina Krinitsina, an expert from the SRO97 Group of Companies (http://sro97.ru/), to answer this question.

- What should members of a self-regulatory organization do if the SRO that issued them permission was left “overboard”?

If an SRO is expelled out of court, then all permits previously issued by the organization become invalid. Accordingly, those legal entities that continue to work using such documents will sooner or later be identified and prosecuted under Art. 171 of the Criminal Code of the Russian Federation for carrying out illegal business activities. Thus, members of such an SRO are left with 2 options: either submit documents and join another SRO (if this has not been done previously), or challenge the exclusion of the SRO by Rostechnadzor in the Arbitration Court.

According to Art. 55.16 of the Civil Code of the Russian Federation, in case of termination of membership in an SRO, entrance fees, membership fees and funds from the compensation fund are not returned. However, the same Urban Planning Code provides that in such cases, funds from the fund of a liquidated SRO can be transferred to NOSTROY, and then to the fund of the organization where the members are going to join. The paradox is that such a transition should take place within a month.

The solution is certainly a good one, but this procedure is not as simple as it seems. In fact, not a single liquidated SRO will give up its fund, which contains an impressive amount, “without a fight.” Accordingly, even if information about an SRO is excluded from the state register out of court, funds from the compensation fund will be transferred only by decision of a court (or even several).

Many members who are left with an invalid permit in hand are interested in who will pay for the loss that was caused as a result of the sudden suspension/liquidation of the SRO’s activities...

In Art. 13 Federal Law No. 315 “On SRO” establishes that an organization is liable only if its member caused damage to the customer during the production process. It also establishes that payment of funds from the fund “to ensure property liability” is not allowed. In Art. 55.16 of the Civil Code of the Russian Federation states that only damage to the customer and legal expenses (subsidiary liability) can be compensated from the compensation fund.

Consequently, a liquidated SRO will not be able to financially protect its participants. Therefore, if the association is at risk, you should prepare in advance for joining a new SRO, so as not to subsequently violate the legislation under Art. 171 of the Criminal Code of the Russian Federation.

What advice could you give to those who are planning to join an SRO - how to protect themselves and make the right choice?

When a participant, for certain reasons, is not satisfied with the conditions of membership in a self-regulatory organization, he can write an application for voluntary withdrawal from the SRO. Since membership in the association is not mandatory and is issued solely for the needs of the organization, there will be no obstacles to this.

Any company that is part of an SRO must compare the consequences that it will face upon exit. Only members of a self-regulatory organization may be authorized to perform certain work. Without this document, many types of activities and lucrative contracts will be unavailable.

Reasons for leaving

An application for voluntary withdrawal from an SRO can be submitted for a variety of reasons. Among the most common companies note:

• the amount of annual membership fees;
• change of direction of the company;
• high requirements of a self-regulatory association;
• lack of information, legal and other support;
• unsatisfactory performance of the SRO.

For many organizations, membership in an SRO is only necessary to fulfill a one-time contract, when it is planned to implement a type of work that requires a permit, or to become a participant in a tender. After completing the order, such companies have no need for further cooperation. The reason for deleting an organization from the SRO register may be its liquidation. In this case, the company automatically ceases to be a member of the partnership and loses all contributions paid.

Order and rules

The legislation establishes a certain procedure for the withdrawal of its members from the SRO. Any organization must prepare a certain package of documents, which includes:

• resignation letter;
• official document on SRO membership;
• documents confirming payment of mandatory contributions.

All prepared papers are handed over to the leaders of the self-regulatory organization, and the participant loses membership from the moment he submits his application to leave. From this time on, he bears property responsibility for the unification only of previously paid contributions to CF BB and CF ODO.

If there are no errors in the registration, the exit permit is issued on the day of submission. After signing the application, the self-regulator is given three days to notify the supervisory authorities - Rostechnadzor and Rosreestr, as well as NOSTROY or NOPRIZ, depending on the type of SRO, about the withdrawal of one of its members.

Exclusion from SRO

Organizations can not only leave the partnership on their own, but also have grounds for exclusion from the SRO. In such a situation, leaving the association is forced. The decision on it is made by the management team of the partnership.

Grounds for exclusion

The grounds for exclusion from the SRO must be compelling. They are strictly stipulated within the framework of the legislation, Part 2 of Art. 55.7 Civil Code of the Russian Federation and include:

• failure to comply with the instructions of state construction supervision authorities two or more times during the year when carrying out construction and reconstruction work;
• reasons specified by the internal regulations of the SRO.

Illegal exclusion from SRO

There are cases when there are no reasons for expulsion from the SRO of a company, but it receives a message about the termination of its membership. Unlawful exclusion does occur, but such situations can be dealt with. If a firm was excluded from a partnership in violation of the Civil Code, then it has the right to file a claim in the arbitration court. Based on the court decision, her membership in the self-regulatory organization must be restored.

Elimination procedure

Termination of membership and exclusion from the SRO must be carried out strictly within the framework of the regulations. It is spelled out in Article 55.7 of the Civil Code of the Russian Federation and involves the following procedure:

1. Conducting a general meeting of partnership participants.
2. Review of case documents.
3. Adoption of a decision on exclusion by the collegial governing body.
4. Sending a corresponding notice to the company that will be excluded.
5. Informing regulatory government agencies.

It is very important to follow the order, because if it is violated, the former SRO participant can go to court and demand his reinstatement.

Refund of fees

Companies that have been excluded from the SRO or that have voluntarily given up membership must understand that it will be practically impossible to return the fees paid. This applies to both payments to the compensation fund and payments of annual membership fees.

Contributions to the association's committee can be received only if the type of activity of the organization requires the approval of an SRO (regulated by Federal Law No. 240).

Until July 2017, construction companies had the option to return payments or transfer them to a new partnership fund.

Consequences of leaving or expulsion from the SRO

Exit from an SRO, as well as the exclusion procedure, have their consequences for organizations. Some of the work for which permits are issued only by self-regulatory partnerships will become inaccessible to them. Also, former members of associations will have to face certain problems:

• loss of invested funds (according to the law, contributions are returned in rare cases);
• inability to participate in tenders and competitions for large contracts;
• decrease in loyalty from partners and clients;
• lack of legal and information support;
• full and independent property liability.

Organizations left without partnership support are responsible only for themselves. This also has its advantages, since the subsidiary liability of SRO members can negatively affect the budget of many companies. It is important to take into account that an organization that again wants to become a member of the SRO will be able to do this only a year after leaving. This imposes serious restrictions on its activities and obtaining new contracts.

If you decide to terminate your membership in the SRO on your own, then it is not at all difficult; you just need to submit an application to leave the SRO. It is necessary to keep in mind a number of legal consequences that will arise after voluntary termination of membership:

1. You are deprived of the right to perform relevant types of work.
2. No contributions paid to the SRO are refunded (exceptions are below).
3. Within 1 year, the organization cannot be re-accepted as a member of the SRO.

If you nevertheless decide to leave the SRO, but within a year you may want to resume activities and again become a member of one or another self-regulatory organization, then you should not terminate your membership voluntarily, but seek your exclusion from membership on the initiative of the SRO itself. The reason for this may be failure to pay membership fees for several months, failure to undergo a scheduled inspection, etc. In any case, these actions can be agreed upon with the SRO itself and a mutually beneficial compromise can be reached.

What may be the reasons for termination of membership in an SRO and expulsion from members of an SRO?

Town Planning Code of the Russian Federation Article 55.7. contains grounds for termination of membership in a self-regulatory organization.

1. Membership of an individual entrepreneur or legal entity in a self-regulatory organization is terminated on the grounds and in cases specified in the Federal Law "On Self-Regulatory Organizations", including in the event of one self-regulatory organization joining another self-regulatory organization. A self-regulatory organization has the right to establish by internal documents of the self-regulatory organization additional grounds for exclusion from membership of the self-regulatory organization.
2. A self-regulatory organization has the right to decide to exclude an individual entrepreneur or legal entity from membership of a self-regulatory organization also:
   1. in case of failure to comply two or more times within one year with the instructions of state construction supervision authorities during the construction or reconstruction of capital construction projects;
   2. in other cases established by the internal documents of the self-regulatory organization.
3. Membership in a self-regulatory organization is considered terminated from the date of entering the relevant information into the register of members of the self-regulatory organization.
4. No later than three working days from the day following the day the permanent collegial management body of a self-regulatory organization made a decision to exclude an individual entrepreneur or legal entity from members of a self-regulatory organization, the self-regulatory organization notifies in writing about this:
   1. a person whose membership in a self-regulatory organization has been terminated;
   2. National association of self-regulatory organizations, of which such a self-regulatory organization is a member.
5. A person who has ceased membership in a self-regulatory organization will not be refunded the paid entrance fee, membership fees and contribution(s) to the compensation fund(s) of the self-regulatory organization, unless otherwise provided by the Federal Law on the entry into force of this Code.
6. If an individual entrepreneur or legal entity terminates membership in a self-regulatory organization, such individual entrepreneur or such legal entity cannot be re-admitted to membership in the self-regulatory organization within one year.
7. The decision of a self-regulatory organization on exclusion from membership of a self-regulatory organization, the list of grounds for exclusion from membership of a self-regulatory organization, established by the internal documents of a self-regulatory organization, can be appealed to an arbitration court, as well as to an arbitration tribunal formed by the relevant National Association of Self-Regulatory Organizations.

Procedure for leaving the SRO

The procedure is not complicated. It is enough just to contact the SRO with an application to leave the SRO and membership will be terminated in the near future.

Refund of contributions to the compensation fund

Refunds of contributions made to the SRO compensation fund to its members will only be possible if the SRO ceases to exist. Federal Law of July 3, 2016 N 372-FZ “On Amendments to the Town Planning Code of the Russian Federation and Certain Legislative Acts of the Russian Federation.”

Article 6 of this law states: “When a non-profit organization that has the status of a self-regulatory organization is excluded from the state register of self-regulatory organizations in the case established by part 3 of this article, the rights of the owner of the account in which the funds of the compensation fund of the self-regulatory organization are placed are transferred to the National Association of Self-Regulatory Organizations , of which such a self-regulatory organization was a member. An individual entrepreneur or legal entity upon exclusion of a non-profit organization having the status of a self-regulatory organization, of which they were members, from the state register of self-regulatory organizations in the case established by part 3 of this article, and upon acceptance of such an individual entrepreneur or legal entity as members of another self-regulatory organization corresponding requirements established by parts 1 - 4 of Article 554 of the Town Planning Code of the Russian Federation, has the right to apply to such a National Association of Self-Regulatory Organizations with an application to transfer the funds of the compensation fund of a self-regulatory organization credited to the account of such National Association, information about which is excluded from the state register, to the account of the self-regulatory organization , the members of which are such individual entrepreneurs or legal entities.

Transfer from one SRO to another

The legislation does not provide for the option of transferring to another SRO with the preservation and transfer of paid contributions. Thus, if for some reason you want to change one SRO to another, then you need to be prepared to leave one organization with the loss of all contributions and join another. The section on leaving the SRO is presented above.

Change of address and subject of the Russian Federation - is a change of SRO required?

Construction organizations planning to change their legal address to an address in another constituent entity of the Russian Federation should be especially careful. The fact is that it is for builders that the principle of territoriality of being in an SRO is established in the constituent entity of the Russian Federation where the company is registered. And if a company changes its address to an address in another subject of the Russian Federation, then it no longer has the right to remain a member of the SRO in the subject of the Russian Federation at the previous address. Membership must be terminated. In this case, the change of SRO and the transfer of the compensation fund paid by the SRO member are not provided for by law.

Design and survey organizations can be members of any SRO on the territory of the Russian Federation, and, accordingly, freely change addresses to addresses in other constituent entities of the Russian Federation, without the need to change the SRO itself.

The grounds for depriving a self-regulatory organization of the right to issue permits to carry out activities in the construction sector are provided for in Article 55.2, Part 5 of the Civil Code of the Russian Federation.

If the SRO is excluded from the register, all permits previously issued by the non-profit partnership become invalid.

In case of continuation of activities based on the evidence of an excluded self-regulatory organization, companies must bear criminal liability in accordance with Art. 171 of the Criminal Code of the Russian Federation.

Reasons and procedure for exclusion

The exclusion of a self-regulatory organization from the register may occur for one of the following reasons:

From July 1, 2017, changes are being made to the Civil Code of the Russian Federation in accordance with Federal Law No. 372 of July 3, 2016. Clause 5, which provides for exclusion from the register for non-payment of contributions to the National Association of Self-Regulatory Organizations, is declared invalid.

Implications for companies

Once violations are identified, a decision to exclude a non-profit partnership is made out of court.

If an SRO is excluded from the register, the consequences for participating companies include the inability to continue professional activities and the loss of funds contributed to the compensation fund of the non-profit partnership.

Legal entities risk loss of contract, refusal of VAT refund and complete cessation of activity.

What should members of an excluded SRO do to avoid downtime and resume work within the law? Companies must choose a new non-profit partnership and enter into it within 30 days after the old SRO is removed from the register. Another option is to challenge Rostekhnadzor’s decision in the Arbitration Court.

The issue of returning CF funds remains controversial. According to the Civil Code of the Russian Federation, the funds of the affected companies must be preserved.

In accordance with the developed algorithm, money from the compensation fund of the excluded self-regulatory organization goes to NOSTROY, and then, at the request of legal entities, the funds are transferred to the account of the new organization.

In the application for transfer of the CF, the SRO member indicates the name of the SRO excluded from the state register, the name of the new association, its number in the unified register and bank details.

Copies of the decision of the Council of the new association on accepting the company and issuing permission to carry out activities in the field of construction, reconstruction and major repairs of buildings and structures must be attached to the completed application.

However, in practice, liquidated non-profit partnerships refuse to transfer money voluntarily. Funds are often collected only by court order, which delays the process. Therefore, within the prescribed month period, the affected construction company cannot return the CF and is forced to re-pay the contribution to the SRO.

Choosing a new organization

What to do if the SRO was excluded from the register, who will compensate for the companies’ losses as a result of the liquidation of the non-profit partnership, and how to protect themselves in the future are the main questions that interest the participants of the sanctioned association.

SROs only compensate for damage to the customer that arose as a result of improper fulfillment of contractual obligations by a member of the association. Payment of funds from the fund to ensure financial liability is not provided.

Consequently, a self-regulatory organization will not be able to protect its members, so companies must be careful when choosing an SRO to join.

If a non-profit partnership is at risk, the possibility of a transfer to another association should be considered in advance.

Construction companies must conduct a quality check with a self-regulatory organization before contributing funds to the compensation fund to avoid financial losses in the future.

What to do if your SRO is excluded from the state register?

Currently, in practice, cases where SROs are excluded from the state register have become more frequent. At the time of writing this article, NOSTROY (National Association of Builders) excluded more than 50 construction SROs from the state register, NOPRIZ (National Association of Designers) excluded 26 design and survey SROs from the state register.

What is the exclusion of SRO from the state register? This is deprivation of the SRO's special status; the procedure is similar to revoking a bank's license.

Entering information about a construction (design) organization into the register of SRO members is a legally significant action and from the date of inclusion in the SRO register the organization has the right to carry out construction (design).

If an SRO is deprived of its status, the rights issued to such an SRO to carry out construction (design) are also terminated. That is, from the date of exclusion of the SRO from the state register (not to be confused with the liquidation of the organization and the exclusion of information from the Unified State Register of Legal Entities) The rights to carry out construction (design) issued by such an SRO are automatically cancelled.

When an SRO is deprived of its status, a construction (design) organization is faced with the need solving two questions:

Answer the first question not difficult: you need to urgently join a new SRO (otherwise you risk breaking the contract). Find out how to choose an SRO here.

Answer to the second question found reflection in the law. Part 14 of Article 55.16 of the Town Planning Code of the Russian Federation says that SRO excluded from the state register is obliged to transfer funds from compensation funds within a week (from the date of exclusion of the SRO from the register) to the corresponding special accounts NOSTROY or NOPRIZ.

In turn, part 16 of Article 55.16 of the Town Planning Code of the Russian Federation provides for the right of organizations (former members of SROs), if they have joined new SROs, to apply to NOSTROY (construction) or NOPRIZ (design) to transfer funds from compensation funds to the accounts of new SROs which they entered.

Funds from compensation funds of excluded SROs credited to NOSTROY (NOPRIZ) accounts, are transferred to new SROs in the amount previously paid on the basis of relevant statements from members of the SRO in accordance with Order of the Ministry of Construction of Russia dated 09/08/2015 No. 643/pr “On approval of the procedure for interaction between the National Association of Self-Regulatory Organizations and a self-regulatory organization in the event of exclusion of information about a self-regulatory organization from the state register of self-regulatory organizations.”

In practice, the situation is complicated by the fact that SROs are excluded from the state register precisely because lack (inadequacy) of compensation funds.

Statutory weekly deadline, SROs are also not respected. The compensation funds have to be collected through the courts.

As a result of all these procedures, compensation funds are transferred to the accounts of NOSTROY and NOPRIZ in separate parts and not in full.

The NOSTROY (construction) website has a special section devoted to information about excluded SROs. This page contains comprehensive information regarding the compensation funds received by NOSTROY from excluded SROs. There is also a funds transfer application form. There is a similar section on the NOPRIZ website.

The only point that I would like to draw your attention to is the mechanism in accordance with which funds from compensation funds are distributed. The mechanism is very simple - Whoever was the first to submit an application will receive their funds first.

Let’s say, if the SRO in which you were a member transferred 10 million rubles to the NOSTROY account, and the total volume of claims for applications is 15 million rubles, then the claims will be satisfied only for the first applications for a total volume of 10 million rubles, for the remaining applications for a volume of 5 million rubles NOSTROY will write a refusal. However, if new funds arrive within a few days, the requirements will again be satisfied in appropriate amounts.

We believe that before sending the application to NOSTROY (NOPRIZ), the most correct thing to do is to start check the availability of transferred funds from compensation funds.

If there are funds in NOSTROY (NOPRIZ) accounts an application for transfer of funds must be immediately sent to their address.

If there is no information about the receipt of funds, then there is no point in sending an application; it is better to continue monitoring the NOSTROY (NOPRIZ) website for the receipt of funds.

For information! Some organizations, in order not to miss the receipt of funds, send such applications daily to NOSTROY (NOPRIZ), thereby significantly increasing their chances of transferring funds from compensation funds.

For information! Currently, judicial practice has emerged, according to which former members of expelled SROs recover funds from compensation funds from NOSTRA and NOPRIZ.

The courts justify their decisions by the fact that a situation in which the SRO does not transfer funds from compensation funds is a NOSTROI (NOPRIZ) problem.

The organization cannot be to blame for the fact that the SRO does not transfer funds, and NOSTROY (NOPRIZ) did not claim them.

On the issue of drawing up an application for the transfer of compensation funds to NOSTROY (NOPRIZ), as well as on other issues related to SRO, you can contact our lawyers.

What to do if an SRO has been excluded from the register, letters are received with offers to move “for free” to another SRO, etc.

Below we will look at these situations and try to figure it out.

If your SRO is closed, companies that are members of this NPO will no longer receive an extract from the register, which can be attached to the documents for submitting an application to participate in bidding for a contract. The closure of acts under current contracts is also at risk.

What actions to take in this case (How to return funds transferred to the compensation fund of an SRO excluded from the register):

1. Make sure that the SRO has actually left the register of Rostechnadzor and NOSTROY/NOPRIZ. This can be done on the relevant websites using the links.

2. Select and join a new SRO. Emergency situations require urgent measures - if your contracts are at risk, you should not expect the SRO to return to the register.

3. Send to NOSTROY an application for the transfer of CF funds from the “old” SRO excluded from the register to the current SRO (this application must include the name of the excluded SRO, of which the applicant was a member; the name of the SRO, of which the applicant became a member, its number in the state register of SRO and details of her special bank account on which the funds of her CF are placed, and to which previously deposited funds of the CF SRO are subject to crediting)

Let us note that you may not be able to wait for the money, since NOSTROY will transfer funds to the account of the “affected” members of the excluded SRO only if these funds are available.

That is, if the SRO was closed, but it did not transfer the money to NOSTROY in full, then payments will be made in the order in which NOSTROY receives applications from the affected construction companies for the transfer of CF funds from the excluded SRO to the existing ones. If the SRO that was expelled did not transfer the money to the Association at all, then there will be nothing to divide among the builders.

Most often it happens that the SRO was excluded from the register precisely because the funds of the CF were not placed in special accounts, but this happened for a simple reason - all the money had already “gone into the shadows”, and neither through the court nor through the Association You can no longer get your contributions back.

They want to “transfer” you to another SRO for free?

These letters have the meaning of “free cheese” and are not legally binding because:

1. Automatic transfer to another SRO is not regulated by the City. According to the Code of the Russian Federation, the transition is carried out only after writing an application for joining the SRO, subject to payment of contributions to the CF.

2. According to Part 3 of Article 55.16 of the Town Planning Code of the Russian Federation NOT ALLOWED payment of a contribution to the compensation fund of a self-regulatory organization in installments or in another way that excludes a one-time payment of the specified contribution, as well as PAYMENT OF FEE BY THIRD PARTIES who are not members of such a self-regulatory organization. The only exception is the transfer of CF funds through NOSTROY/NOPRIZ, after writing an application and collecting these funds to the accounts of NOSTROY/NOPRIZ from the account of the excluded SRO.

This means that no one other than your organization can write an application, transfer you to another NPO, and pay your contributions to the SRO legally.

What is the “mousetrap” of this idea:

1. Companies that fall into this trap will be forced to deal with constant checks and extortions, as they will become hostage to the situation. The mechanism has already been worked out; you can ask for feedback from organizations that are already members of these SROs.

2. Exiting these SROs will be complicated by problems in further work, since according to Part 6 of Article 55.7 of the Town Planning Code of the Russian Federation, if an individual entrepreneur or legal entity terminates membership in a self-regulatory organization, such individual entrepreneur or such legal entity cannot be re-accepted as members of a self-regulatory organization.

That is, you block the work of your company for 12 months.

Is a “former” SRO demanding money from you, whose status was canceled and excluded from the register?

Be careful, the exclusion of an SRO from the register of RosTechNadzor does not mean the termination of its activities as a non-profit organization; accordingly, membership in this NPO imposes on you certain obligations enshrined in the charter of this NPO (monthly fees, inspections, etc.)

In order not to impose unnecessary expenses and litigation on your company, you must promptly exit partnerships in which you do not need membership.

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