Creation of a homeowners association in a house under construction. The State Duma banned the creation of homeowners associations in unfinished houses. Rules for organizing a community at home
Hello!
Briefly, the situation is as follows. A new building in the Moscow region, the HOA was created by the developer at the construction stage, includes 5 buildings (2 of which have not yet been completed), the charter is typical, a "familiar" management company was hired by the developer for operation. The control levers were transferred last week into the hands of the tenants (of course, the first ones who came across, who are not indifferent to what happens in the house in which they bought housing with their last money, but not professionals), there is no bank account, no documents on the house were transferred. The management company takes payments of 4,500 rubles (2 tr - maintenance and repair, 2 tr - heating, 500 rubles - water). The entrances are not cleaned at all, fees for garbage chutes are charged - its maintenance is not carried out, on the common balconies there are mountains of construction and household waste (the disgusting of the residents themselves), but this Criminal Code has not been cleaned for months. The management company says that she has no money, since the house is a new building, many do not pay utility bills, as a result, we, the residents, have a debt of 3 million to the management company. Hot water is intermittent, there was a rumor that during the design / construction there was an error, there was an additional technical solution by the design organization, but the problem has not been fixed. The Criminal Code blames the residents that many hired non-professionals - as a result, they disrupted the work of the water supply. The new board does not have a penny of money, and there are no premises and office equipment provided. Most tenants do not give a damn about the situation around, especially if everything is in order in their apartment, therefore, out of 916 apartments, there are only about 100 apartments in the HOA, the rest of the areas in the HOA are the developer. Help to understand the situation and outline a plan of action to get out of this situation. Where can I get money for the construction expertise of the house and the financial verification of the documents of the Criminal Code and where to find professionals in this area - there are a lot of offers? Should the bylaws be changed? How and when you can include in com. Payments in the line "maintenance of the HOA", because without this we will not even be able to convene a general meeting - do we need to print notices, send them by registered mail, etc.? Do HOAs currently need to open a bank account in order to regulate the situation with non-payers and HOA debts, or do you need to deal with financial documents first? What documents (project) documentation for the house, what else ?!) and from whom you need to demand (developer, management company, BTI) in an official manner to organize the activities of the HOA? Maybe it's time to apply to the court / prosecutor's office before the guarantee for the house has expired (meaning problems with water, maybe there are other mistakes during construction that we don't know about yet)? Since I need a general consultation, I can’t decide who exactly to go to with questions. Do I need to be a member of the association to come to you for a consultation? Are your consultations paid? Sorry for the messy letter. Just read a lot of documents, but how exactly to act in this situation is not clear. Thanks in advance for any information.
According to the Housing Code of the Russian Federation, the owners independently determine the method of managing an apartment building, and Art. 161 of the Housing Code of the Russian Federation makes it even a duty for the owners to decide on one of the ways to manage the house at a general meeting, and can be changed at any time based on his decision.
Initially, in your apartment building, HOA, judging by your story, was created illegally, since only future owners of the premises have the right to create HOAs in houses under construction. Although in practice, unfortunately, cases of “imposing” by the developer of his own way of managing an apartment building have become more frequent.
In your situation, you can create an initiative group from among the owners of the premises (at least three owners) in order to challenge the minutes of the general meeting of the future owners of the house, at which the decision was made to create an HOA. The meeting of the initiative group must be documented in minutes. The chairman of the initiative group or another person authorized by him requests an Extract from the Unified State Register of Legal Entities (Unified State Register of Legal Entities). From the Extract it will become clear which of the owners of your house are members of the board, who is the chairman of the board, etc. You should also send requests to the Administration of your district with a request to provide documents confirming compliance with the procedure for state registration of the HOA in the apartment building under construction during its creation. Such documents are: the agenda - (“on the creation of an HOA in an apartment building under construction”); notice of the general meeting; decision forms regarding the persons who will own the ownership of the premises in your home; a register of such persons; Charter of the HOA. Do not forget that on the copy of the submitted request it is necessary to put a mark on the acceptance of the document by the office (reception) of the District Council, with the signature of the receiving person, the decoding of his last name and the date of acceptance.
At the same time, you can send requests to the police department of your district, the prosecutor's office with a request to check for the legal establishment of an HOA in your home.
From our point of view, it is much easier to create a new HOA, so to speak, to start from scratch. The liquidation of the HOA will make it possible to dissociate itself from the illegal actions of the former governing bodies of the HOA.
Unfortunately, it is not clear from your question how the levers of control were transferred into the hands of the residents.
According to the housing legislation of the Russian Federation, it is not necessary for the HOA to conclude an agreement with the management company. However, to a greater extent, it all depends on the activity of your home. If the house is active, then there is no need to involve a management company in servicing your house. If the residents are inert, then there are 2 options: either hire an employee who, on the basis of a concluded employment contract, will manage your house (manager), or an agreement is concluded with a management company. At the same time, the Board, its chairman and the audit commission, as mandatory bodies of the HOA, must be elected.
Suppose that at the general meeting decisions were made to elect a new chairman from the new composition of the members of the Board, as well as the audit commission. If there are problems with the transfer of documentation to the house, it is necessary to try to resolve the dispute out of court. If the result is negative, you will have to go to court to file a claim for the forced seizure of documentation for the house.
The Housing Code of the Russian Federation approved the concept of "technical documentation for an apartment building". It is her, as well as “other documents related to the management of such a house”, that is obliged to transfer to the newly elected management organization, or the HOA organization that previously managed the house in accordance with part 10 of article 162 of the RF LC. The list of such documentation is quite extensive, and, ultimately, is individual for each house. In judicial practice (Resolution of the FAS ZSO dated October 25, 2007 N F04-7509 / 2007 (39633-A46-39) in case N A46-10863 / 2006) there is a statement that the current legislation does not establish a specific list of documents to be transferred in accordance with this article.
However, the Decree of the Gosstroy of the Russian Federation dated September 27, 2003 No. 170 “On approval of the rules and norms for the technical operation of the housing stock” approved the composition of the technical documentation for long-term storage. These documents must be in the organization managing the house. The Federal Arbitration Court of the North-Western District, by a resolution dated January 17, 2007, confirmed the legality of bringing the HOA to administrative responsibility under Article 7.22 of the Code of Administrative Offenses of the Russian Federation, including for the lack of full technical documentation for long-term storage, failure to take measures to obtain or restore documentation with a fine.
In the event that the documentation is not transferred to the HOA for any reason, then it is advisable to actually start managing the house without waiting for the transfer of the documentation, and then demand its transfer in court, or restore the documentation on your own, and then claim damages by virtue of Art. . 15 of the Civil Code of the Russian Federation. Judicial practice on the transfer of documentation in the event of a duly executed decision to change the subject of management is positive.
According to the current legislation of the Russian Federation, the instruction is a technical documentation for an apartment building. The instruction is developed in order to ensure favorable and safe living conditions for citizens, proper maintenance and use of the common property of an apartment building, as well as to ensure control over the condition of this property. The instruction includes the recommendations of the developer (contractors) on the maintenance and repair of common property in an apartment building, the recommended service life of individual parts (objects, elements) of common property. The instructions may include recommendations from designers, suppliers (manufacturers, sellers) of building materials and equipment, subcontractors. The instruction is developed and produced by the developer or another person, on the instructions of the developer, but only for apartment buildings, permission for the commissioning of which was received after July 1, 2007.
Do not forget that when transferring documentation, it is necessary to draw up an acceptance certificate. As a rule, the act is drawn up in free form.
According to the Housing Code of the Russian Federation, the payment for the maintenance and repair of residential premises is set at an amount that ensures the maintenance of common property in an apartment building in accordance with the requirements of the law.
The fee for the maintenance and repair of a dwelling includes fees for services and work on the management of an apartment building, maintenance and current repairs of common property in an apartment building. The main regulatory financial document of the HOA is the estimate, or, as it is also called, the financial plan. The board of the HOA is obliged to draw up an estimate annually. The estimate is approved at the general meeting of the HOA.
The estimate should reflect all the expenses of the HOA during the year associated with the maintenance, maintenance, current, and overhaul of the common property of the house. Due to the non-commercial nature of the activities of the HOA, the funds of the HOA consist mainly of the proceeds of the owners, which are of a targeted nature. As mentioned above, the estimate of the HOA is approved at the general meeting of the HOA and may contain the section "Administrative and management expenses", including wages, payment for communication services, bank services, consumables, stationery and postage, etc.
The amount of payment for utilities is calculated based on the volume of consumed utilities according to the readings of metering devices, and in their absence, based on the standards for the consumption of utilities approved by local governments, with the exception of the standards for the consumption of utilities for electricity and gas supply, approved by the state authorities of the subjects RF.
The transfer of the house to the management company must be carried out no later than 5 days from the date of receipt of the permit for commissioning. This rule is regulated by paragraph 14 of the Housing Code of Russia.
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The house is given by the developer to the balance sheet only after the competition is held by the local municipality, that is, the self-government body.
To participate, the management company must submit certain documents. After the competition, a contract is concluded, which is signed by the developer.
The legal side of the issue
It is worth paying attention to the fact that it is possible to choose a management company without holding a tender in accordance with Article 161, parts 4, 13 of the Housing Code of the Russian Federation, but only if an open tender is considered invalid.
According to paragraph 14 of Article 161 of the Housing Code of the Russian Federation, the contract must be concluded no later than 5 days after the house is put into operation.
If in a year the apartment owners do not decide on the method of management, then in accordance with Article 161 of the Housing Code of the Russian Federation, an open competition will be held by the local government to select a management company.
The procedure for organizing the competition is regulated by Decree of the Government of the Russian Federation N 75 of February 6, 2006.
Transfer of the house from the developer to the management company
The transfer of an apartment building from the developer to the management company is carried out on the basis of a competitive tender.
Previously, it was possible to conclude an agreement on the management of an apartment building only by the developer and the management company. To date, the developer only signs the document concluded between the equity holders and the management company.
Multi-apartment
The management company concludes service agreements with the apartment owners, but after the developer and owners accept the premises on the basis of the act of transferring the house, and a competition will be held.
Procedure
Prior to obtaining a commissioning permit, you can begin to collect documents. But the owners of the premises must decide on the Criminal Code approximately a year before the commissioning of the facility at a general meeting.
If this does not happen, then the management company will be the one chosen by the results of the competition.
In this case, the contract is concluded for a year, and even if the apartment owners choose another management company, then, most likely, they will have to wait for the expiration of the company established by the competition.
But if you organize an HOA, then it will be much easier to change the management company.
Commissioning
In accordance with article 161, paragraph 14, the maintenance contract must be concluded no more than 5 days after commissioning.
But there are often difficulties with this, since an open tender can take a rather long period of time - up to 50 days.
It should be noted that until the house is put into operation, it is possible to collect all the necessary documents - design, technical and other.
But at the same time, the Criminal Code must actively work with homeowners so that in the future it will be chosen.
Choice of MC
In the event that the owners of apartments did not have time to decide on the choice of a management company, then local governments hold an open competition.
Property owners can:
- organize a meeting;
- choose your own management company.
But this can only be done by those who have an agreement with the developer or received housing in accordance with the act of acceptance and transfer.
It should be noted that elections are considered legitimate if at least 50% of the owners are present at the meeting.
Conclusion of an agreement
The conclusion of the contract must comply with Part 5 of the Russian Federation, and specifically:
- the contract must be concluded for at least 1 year and at the same time no more than 3 (but only if the document is signed on the basis of a completed tender);
- the contract can be concluded for 3 months only between the management company and the developer.
In accordance with the legislation of the Russian Federation, an agreement is concluded with everyone who has accepted and signed a deed of transfer with the developer, that is, with the owners of apartments.
Only after this, the management agreement for apartment buildings can be considered valid.
The agreement between the developer and the management company no longer exists. This procedure is regulated by Article 161, Part 14 of the LC RF. But nevertheless, the documents must be signed and stamped by the developer.
Required documents
In accordance with Government Decree N 75, not only the procedure for holding a competition is regulated, but also the procedure for submitting the necessary documents.
Management companies wishing to participate in the competition are required to provide:
- application filled in accordance with the sample;
- all constituent documents;
- copies of all available certificates and licenses;
- balance sheet for the previous 6 months;
- if there are recommendations and letters of thanks, then they must also be presented;
- draft management agreement and annual budget;
- certain proposals for waste disposal;
- data on employees - engineering and technical staff broken down;
- how many harvesting equipment and what it is.
Additional documents may also be required. It should also be clarified during what period it is required to provide all the necessary papers.
It is imperative that all the accounting of the management company is in order - there are no debts and so on.
In addition, negative feedback also affects the outcome of the decision. If many are dissatisfied with the management company, then such an organization has practically no chance.
MKD management fee
The payment procedure in 2018 is the same as in 2018. The work of the management company is to provide housing and communal services, and the fee is included in their cost.
According to common Russian practice, this amount ranges from 3 to 9% of the price of services rendered.
In accordance with the Order of the Gosstroy of the Russian Federation of December 11, 1997 N 17-132, payment for services, work, etc. is carried out at the rate established by the Criminal Code.
It is necessary to focus on individual cases:
- if the service agreement is concluded between the management company and the owner of the premises, then payment for the provided utilities is paid by the management company;
- if there is no contract for the provision of services with the management company, then payment is made to the developer (based on Article 155 of the LC RF);
- if the contract was concluded with the management company by the developer, then the payment is still made by the management company.
Legislation is designed to protect, first of all, the interests of owners.
The construction of a new house is the concern of the developer. However, its operation is already the sphere of housing and communal services. From what moment are shareholders obliged to pay for housing and communal services? What key condition must be met in order for the resource supplying organization to have the right to recover from the HOA the debt for the resources submitted to the house? Who should bear the costs of maintaining the house if the developer allowed the shareholders to use the apartments before obtaining permission to put the house into operation?
Builder and shareholder
The Housing Code imposes on the owner of a dwelling the obligation to pay for the dwelling and utilities from the moment the right of ownership to such a dwelling arises ( pp. 5 p. 2 art. 153 ZhK RF). Referring to this norm, citizens refuse to pay for housing until they receive a certificate of registration of property rights. At the same time, the law does not establish deadlines for applying to the registration authority, and registration is of a declarative nature. Therefore, the moment when the right of ownership arises (cf. Art. 8 of the Civil Code of the Russian Federation) depends only on the tenant, who is not prevented from "drag out the process".
At the same time, the right of ownership implies the so-called triad of rights - the right to use, the right to possess and the right to dispose ( Art. 209 of the Civil Code of the Russian Federation). Paragraph 1 of Art. 12 of the Law on Shared Construction states that the obligations of the developer are considered fulfilled from the moment the parties sign the transfer act or other document on the transfer of the shared construction object. Within the meaning of the provisions Art. 218 of the Civil Code of the Russian Federation the ownership of the apartment building belongs to the developer before the transfer to the shareholder. After the transfer, the shareholder acquires the rights to use and own the newly created object. It is from this moment that the shareholder has the right to apply for state registration of ownership of the dwelling in order to also receive the right to dispose of it.
In addition, from Art. 153 ZhK RF it follows that the obligation to pay for housing and communal services is assigned to persons using residential premises both on the right of ownership, under a lease agreement, and on other legal grounds. The shareholder, who received the premises under the acceptance certificate from the developer, uses them legally and, therefore, is obliged to pay for the premises and utilities (see also Determination of the Constitutional Court of the Russian Federation of July 18, 2006 No.-373-O).
We emphasize that the non-use by owners, tenants or other persons of the premises legally owned by them does not exempt them from making payments for housing and utilities (see. paragraph 11 of Art. 155 ZhK RF,Determination of the Armed Forces of the Russian Federation of April 24, 2007 No.78-B06-64, Decree of the FAS ZSO dated 29.05.2007 No.-F04-3181/2007(34456-A75-11)).
There are more and more disputes on which such conclusions are drawn in arbitration practice. They can be divided into two groups. The first is when the HOA tries to recover from the developer a fee for housing and communal services in relation to apartments transferred to equity holders who have not registered ownership of them. If the fact of the transfer of residential premises to equity holders under the act is established, then all claims of the HOA against the developer are unfounded ( Decision of the Arbitration Court of the Krasnoyarsk Territory dated June 9, 2008 No. A33-2625 / 2008). However, if the materials of the case confirm that the apartments were not transferred to equity holders, then the conclusion will be unequivocal: the costs of maintaining, repairing and communal services of apartments that were not transferred into possession from the developer to equity holders under acts of acceptance and transfer cannot be assigned to the equity holder ( Resolution of the Federal Antimonopoly Service No.-A65-24128/07-SG1-18 dated March 19, 2008, No.-A65-24136/05-SG1-17 dated March 6, 2008, FAS UO dated 01/16/2008 No. F09-10699 / 07-C5). Such costs are at the expense of the developer.
Another category of disputes is the appeal against decisions of the departments of Rospotrebnadzor on bringing management organizations to administrative responsibility. Officials believe that the conclusion of an agreement for the management of an apartment building, which implies the payment of a fee, with equity holders (investors) who have not yet registered ownership of the premises in the house, infringes on the rights of equity holders and violates Law of the Russian Federation of February 7, 1992 No.-2300-1 "On Protection of Consumer Rights". However, the arbitrators take the side of the managing organizations and note that in the case when the apartment was transferred by the developer to the shareholder under the act after obtaining permission to put the object into operation, the absence of state registration cannot indicate the absence of ownership. Therefore, the establishment in the contract of the obligation of the investor to pay for housing and utilities from the date of transfer of the constructed object to the investor does not contradict the requirements of the Housing Code of the Russian Federation and the Law on Consumer Rights Protection ( Decree of the FAS UO dated March 31, 2008 No.-Ф09-2002 / 08-С1).
If the house has not yet been rented
As we found out, before the transfer of apartments to equity holders, it is the developer who acts as the owner and bears the burden of maintaining the property. It should be added that due to paragraph 2 of Art. 8Shared Construction Law the transfer of an object of shared construction is carried out no earlier than after obtaining, in accordance with the established procedure, permission to commission an apartment building. In turn, according to paragraph 1 of Art. 55 of the Town Planning Code of the Russian Federation permission to put the object into operation is a document that certifies the construction (reconstruction, overhaul) of the capital construction object in full in accordance with the construction permit, the compliance of the constructed (reconstructed, repaired) capital construction object with the urban planning plan of the land plot and project documentation .
In practice, it happens that even before an apartment building is put into operation (and, accordingly, before signing the acts of acceptance and transfer of apartments to equity holders), the developer gives equity holders the opportunity to use the apartments (for example, to finish them). Naturally, utilities are consumed during this time. To resolve the issue of paying for such services, it is most convenient for the developer to create an HOA in a house under construction. Note that after the entry into force of the Housing Code of the Russian Federation, the developer cannot be the founder of an HOA (previously, this was allowed by Article 48 of the Federal Law No. 72-FZ of June 15, 1996, “On Associations of Homeowners”, which has become invalid). A decision to create an HOA in a house under construction can only be made by a meeting of future owners of the premises ( Art. 139 ZhK RF). Such a meeting is held in the same order as the meeting of owners of premises in an apartment building ( Art. 45 - 48 LCD RF). The number of votes of future owners is proportional to the share of the area of the premises, the construction of which he finances, in the total area of the premises in the house under construction. The areas of the premises are fixed in investment contracts, contracts for participation in shared construction.
The housing legislation does not distinguish between the status of a partnership established in a house under construction, and an HOA, formed in the usual way - by the owners of the premises. This leads to the conclusion that the HOA in a house that has not yet been put into operation is also a way of managing a house in the sense of Art. 161 ZhK RF. In other words, the HOA has all the rights and obligations that the HOA has in an operated apartment building.
The partnership, created by the decision of the general meeting of equity holders who have not yet registered the ownership of apartments in the house for which permission for commissioning has been received, was recognized by the FAS VVO as a full-fledged HOA, having the right to demand from the developer and the organization operating the house under an agreement with him, technical documentation . The arbitrators did not accept the developer's arguments that, before registering the property rights of equity holders, they are not entitled to choose the way to manage the apartment building, and the developer himself is the only owner who decides the management of the house ( Decree No. 10.06.2008-A 43-10275/2007-34-315 ).
Thus, the HOA has the right to conclude contracts for public services of a house under construction. Here it is very important to determine the moment from which it is the HOA that is obliged to pay for the communal resources submitted to the apartment building. The arbitrators come to the conclusion that the fact of acceptance by the partnership from the builder of power receivers is of decisive importance. For example, in Decree No.-А38-2205/2007-10-206 dated 16.06.2008 Judges of the Federal Antimonopoly Service of the Higher Military District satisfied the claim of the energy supplying organization for the recovery of the cost of the supplied electricity from the HOA. The partnership objected that it was not obliged to pay for the energy consumed before the house was put into operation. However, this argument was not accepted by the arbitrators, since the case materials contained an act on the transfer of the internal electrical installation for maintenance by the HOA, which was subsequently checked and put into operation in the presence of the chairman of the HOA. The judges noted that the partnership did not prove that the electrical installation during the disputed period was owned, rented or managed by another person.
And in Decree of the FAS PO dated 04/07/2008 No.-A12-10612 / 06-C25 it was concluded that the HOA can bear the burden of expenses for the object only after the transfer of this object to it, which must be confirmed by the act. With the fact that the issue of transferring power receiving devices to the HOA was also agreed by the FAS SZO in Decree No.-A13-8317/2007 dated 19.06.2008.
Developer and HOA
In a situation where equity holders move into apartments and use them even before signing the act of acceptance and transfer with the developer (even after the house has been put into operation in the prescribed manner), there is one more nuance. The partnership created by such equity holders pays for the consumed utility resources to resource-supplying organizations (provided that the building's life support systems are transferred to it for maintenance) and most often re-bills their cost to residents. Despite the fact that tenants make payments on a voluntary basis, the HOA has the right to recover from the developer the amount of unjust enrichment in the amount of the costs of maintaining the house incurred before the transfer of residential premises to equity holders. This is confirmed first of all by arbitration practice. For example, in Decree of the FAS VVO dated 01.10.2007 No.-A43-35340 / 2006-20-770 a similar situation was considered in relation to a house built under a simple partnership agreement and with the involvement of funds from equity holders. The court concluded that the developer unjustly enriched himself at the expense of the HOA. The fact that the HOA issued receipts for payment to tenants and actually did not bear the cost of paying utility bills at its own expense is not significant. The HOA, upon filing a claim, acts in the interests of the tenants. The funds received from the developer are subject to accounting against future utility payments of residents.
The situation between the developer and the HOA in a dispute on which it was decided Decision of the Arbitration Court of the Altai Territory dated April 18, 2008 No. A03-14047 / 07-33. Before putting the house into operation and transferring apartments to equity holders, the developer acted as a subscriber of resource-supplying organizations and concluded an agreement with the HOA established in the house on payment for consumed utility resources. Under this agreement, the HOA paid the money collected from the residents to the developer's cash desk, but later went to court demanding to recover the amount of unjust enrichment. The arbitrators supported the partnership, since until the transfer of the completed construction and commissioned premises to the equity holders, the burden of maintaining the house should have been borne by the defendant, who had no legal grounds to present the utility costs to the plaintiff for reimbursement. At the same time, the agreement between the HOA and the developer was recognized as not concluded due to the absence of an essential condition on the amount (limits) of supplied resources.
Federal Law No. 214-FZ of December 30, 2004 “On Participation in Shared Construction of Apartment Buildings and Other Real Estate and on Amendments to Some Legislative Acts of the Russian Federation”.
See also Decree of the FAS PO dated March 14, 2008 No.-A55-5615/06.
The decision was appealed to the court of appeal, but at the time of the magazine going to print, the results of the trial are unknown.
The law grants the right to persons owning residential premises, determine how they will manage their home property.
One of the methods of management is the organization of homeowners - HOAs.
This is an organization that does not conduct business, that is, does not profit from it. She is only concerned with keeping the house in proper order. Issues that are related to the maintenance of the house, she decides on her own.
To do this, it attracts either organizations from outside, or performs its tasks on its own. The association, being a legal entity, has its own bank account and has the right to recruit personnel to perform its statutory tasks.
The main constituent document is.
The activities of the partnership must comply with the tasks stated in its charter, that is, the maintenance of the house. Other work is not allowed.
Who is allowed?
The association is created only by homeowners. The basis, as well as the condition for the creation, is the presence of tenants-owners in an apartment building and the decision of their general meeting.
But in order for it to be valid, for more than 50% to vote, those present at the meeting. It is also necessary that at least fifty percent of the list of owners of residential premises participate in the voting.
Only in this case, the creation of a partnership will be legal.
So, only a person who owns property in a house, perhaps, can create it, liquidate it, etc.
But among the residents there may be tenants. How is it with these citizens? For the tenant, the mayor's office or its representative of the Criminal Code, as the owner of the dwelling, can be a member.
It is more difficult with minors. On the one hand, such a citizen may own real estate, on the other hand, he is not fully capable, up to 18 years old.
And his representative, guardian, or parents who do not have property in this house, cannot join the partnership either themselves or on behalf of their ward. This legal case to this day, is not legally allowed.
Stages
The opening of any organization includes two periods:
- organizational;
- registration.
Let's start with the first stage of the organization. It includes:
- preparatory stage;
- holding a meeting.
Preparation should begin with creation of an initiative group and studying the legal framework.
That is, to get acquainted with what legislative acts regulate the activities of the partnership, the requirements for it, its activities, the procedure for creating, liquidating, reorganizing.
to the initiative group it is desirable to include people who have experience in management, as well as in matters, legal and financial, of course, they must be trusted by the residents.
By the way, the initiator may not be residents, but for example, house management or the mayor's office.
Then we start on our own preparation for the meeting.
Actions are as follows:
- The group interrogates the owners, explains to them why the HOA is being created and its necessity.
- Documents, bulletins, notifications are being prepared for the meeting.
- The date and place of the meeting is determined and appointed.
- Meeting notices are sent to owners. They are handed over against receipt, in person or by mail with acknowledgment of receipt to the addressee.
- Preparatory documents.
Notification- an invitation to a meeting. It contains the following information:
- Purpose of the meeting.
- Venue.
- Owner data.
- Contact numbers and other contacts where you can get information on issues of interest related to the meeting.
Bulletin- a document intended for voting. It contains complete information about the owner, including the total area of his housing, title documents.
Besides - agenda. Each question must be answered by the property owner (in writing). There are two answers: for or against.
Owners are notified 10 days before the meeting.
Learn about the responsibilities of a manager.
Meeting
The owners must arrive at it with a passport and documents for housing. These documents must be photocopied.
At first choose the chairman of the meeting and the secretary. Then the agenda is announced, after which a debate is held on each issue of the HOA project.
In the case of a positive decision, the charter of the HOA is approved, then its board is elected. Its chairman may be elected by the meeting or the board at its meeting. The composition of the commissions is approved separately. There should be two of them: auditing and accounting.
How to hold a meeting is defined in the LCD, c. On this, in fact, the organizational period ends and the next one begins.
Registration
How ? This is a legal action. carried out by the chairman. He can instruct his authorized representative to register the organization by issuing a notarized power of attorney for him.
The partnership is registered with the Tax Service. When registering, the representative must submit a package of documents (about them below) and a passport. In addition, you must provide copies of them, certified by a notary.
Registration is subject to pay a fee. Its size is 4000 rubles.
After registration is completed, a current account is opened. It is opened by the chairman and the commission of the mayor's office. After the opening, a written notification must be sent to the mayor's office.
The following shall be submitted to the registration authority documentation:
Read about it on our website.
Cost and terms
We have already said above that the original documents are accompanied by notarized copies. That is, in addition to the duty, you will have to pay notary fees.
It is impossible to say exactly how much, since the price depends on the region of the country. In addition, you still need to order bulletins, notifications, and they also have a price.
There may be other costs. For example, for postage and the like. Therefore, it is difficult, if not impossible, to plan the costs of creation in advance.
Registration is carried out within 7 days after the documents are accepted by the Tax Service. The partnership is entered as a legal entity in the unified register (EGRLE) and issued state registration certificate.
Nuances
They can refuse in the case when not all documents are submitted, not all of them, as well as the signatures of the applicant are certified by a notary.
Cancellation is possible when law requirements are not met, which are presented to such organizations when the information given in the documents is distorted or does not correspond to reality. There are gross errors, blots, erasures. The fee has not been paid.
An application for registration is sent to the division of the Tax Service that deals with registration. Otherwise, you will have to start all over again, including notary fees and fees.
The difficulties of creating a partnership lie in the main preparation of the necessary documents and are technical.
It is necessary to draw them up in accordance with the requirements that apply for filling.
For example, form P11001 is filled out in block letters, all sheets must be stitched, numbered, sealed with the applicant's personal signature and certified by a notary. And there are many such nuances, starting with registration and ending with the body that deals with registration.
Therefore, when creating a partnership, it is better right away, even during the preparation period, hire a qualified lawyer, which will accompany the entire procedure for opening an HOA. These are additional costs, but save time and nerves.
But in a new building, it is better to create a partnership as soon as the house is put into operation and the tenants register the ownership of the housing.
The point is that the builder transfers the house to the first person to apply for its acceptance. From the moment the house is handed over to the end of the announced tender and the selection of the management company, the building is under the control of the developer, who manages it.
The benefit for the residents here is that by accepting the HOA house directly from the builders, you can immediately resolve all disputes and eliminate deficiencies.
In this case, for home maintenance you can hire a builder. And this is probably the best option, because who knows better than him the object he built.
Is it possible to create a partnership in several houses? The law allows this possibility. Several houses can unite in a partnership.
The only caveat is that they must border each other. You can create such an association either, as they say, from scratch, or by merging pre-existing partnerships.
Meeting minutes
It contains the following information:
Annexes to the protocol- a list of participants, as well as bulletins and notifications. The latter must have evidence that they were delivered to the addressee.
The protocol is necessary for documentary confirmation of the decision made and registration of partnerships in state bodies.
Today, the partnership is probably the most efficient form of management, since issues related to the maintenance of the house are resolved by it independently. And this, you see, great advantage.
Step by step instructions in this video:
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Homeowners associations are classified as legal entities of a non-commercial type. The association is allowed to be created in any apartment buildings, subject to the statutory conditions. The organization of the HOA is allowed in such cases:
- if the premises in the house belong to different owners, there are land plots on the common territory and infrastructure facilities;
- if it is supposed to combine several buildings that are located close to each other for effective management;
- it is allowed to combine not only multi-apartment buildings, but also private households.
Is it possible to create if some of the apartments are not privatized?
Who is the founder? Only homeowners can participate in the creation of an HOA. Apartments become the property after passing the privatization procedure. That is, apartment owners without appropriate property deeds will not have the right to vote when organizing a new association. The municipality may act as their legal representative.
IMPORTANT! If the number of non-privatized apartments exceeds the number of premises owned within the partnership being created, registration of the association is not possible.
Purpose of education
The main goal of forming an association of owners is to ensure high efficiency of home ownership management, the maximum participation of residents of an apartment building in the arrangement of adjacent territories. The HOA is tasked with:
Each HOA prescribes a complete list of goals and objectives in its charter.
REFERENCE! Each house can belong to only one partnership, the situation is not allowed when the owners of an apartment or residential building become members of two or more HOAs.
Membership in the association begins with the fact of filing an application for membership in the organization with the governing bodies of the HOA. Withdrawal from the ranks of the partnership is mandatory in case of loss of ownership of a particular property.
Rules for organizing a community at home
When creating an HOA, it is necessary to develop and formalize the charter of the organization. The partnership is subject to the requirements of the legislation on non-profit structures - they cannot be engaged in activities that are not related to the implementation of the goals of the association.
Who is the founder of this organization? The founders include members of the board of the HOA, which means that these two concepts are synonymous. All decisions made by the HOA board must be discussed publicly and require at least 50% of the votes for the considered solution to the problem. Since owners' partnerships are classified as legal entities, they must be registered with the tax authorities.
Advantages and disadvantages
Among the benefits of creating an HOA are:
The main drawback of the home management system through the HOA is the difficulty of accumulating sufficient financial reserves for major repairs. Obstacles to the creation and effective management of HOA can be:
- the need for land surveying - the procedure for registering ownership of land requires financial investments and takes a lot of time;
- the ownership of the attic, basement and first floors to legal entities deprives the partnership of the opportunity to earn additional money by renting these premises to replenish its budget;
- the organization must pay income tax;
- large amounts of debts on utility bills in the absence of mutual understanding between the parties can only be obtained by going to court;
- the unwillingness of individual owners to participate in financing the improvement of public areas;
- lack of coordination of interaction between the board of the HOA and local authorities.
ATTENTION! An unpleasant surprise may be delays in the transfer of compensation for benefits for utility bills to some residents by the city authorities to the accounts of the HOA.
Association of homeowners: the procedure for the formation and organization of activities
The creation of a partnership of owners begins with the formation of an initiative group. It must include apartment owners. The initiators of the formation of the HOA set the date for the general meeting of owners. 10 days prior to this date, all property owners in the households selected for consolidation are notified of the upcoming event.
Notices must be in writing. They are sent by registered mail so that representatives of the initiative group have evidence of timely delivery of information about the meeting of homeowners.
You can deliver notifications personally against receipt. Additionally, it is recommended to post an announcement in the entrance or in the courtyard of the building to inform about the date of the meeting.
The notice form must include:
- Date of the meeting.
- Purpose of the event.
- Agenda and list of issues for consideration.
- Conducting a face-to-face or absentee meeting.
To participate in the event, property owners must present their passports and documents confirming the ownership of the premises. If personal presence is not possible, delegation of authority to a third party is allowed. For this, a power of attorney is drawn up by hand by the owner of the apartment or house.
The following items should be on the agenda for the first meeting:
- reasons for establishing a partnership;
- creation of HOA;
- election of the chairman, secretary, members of the board and the audit body;
- approval of the developed version of the charter;
- agreement on the formula for counting votes.
The chairman is responsible for conducting meetings, and the secretary must record everything that happens in the minutes. The formula for counting votes can take into account:- one vote for each owner;
- the weight of the vote is determined in proportion to the area of the property owned;
- the number of votes of the owners is equal to the number of premises in his ownership.
Before the start of the meeting, each participant is given ballots for voting. At the end of the event, everyone marks the preferred answer on the issue of creating an HOA. If more than half of the votes are received, then the decision is considered adopted.
If the meeting did not bring the expected results, it is allowed to re-hold it no earlier than 30 calendar days later.
At the face-to-face form of the meeting, the presence of more than 50% of the invited owners is required. Each of those who attended the event must vote before the end of the fees. In the case of the absentee format, the ballots are distributed to the owners for self-filling without participation in the meeting.
This option is used with a large number of owners. Voting results are announced at meetings and posted on the bulletin board in the house.
REFERENCE! For membership in the HOA, it is not enough to be a participant in the meeting, it is necessary to submit an appropriate application addressed to the chairman of the association.
The final moment is the execution and signing of the minutes of the meeting.
- Payment of state duty and preparation of documents for registration of HOA.
The state duty is paid in the amount of 4,000 rubles (the amount is established by the Tax Code in paragraph 1 of Article 333.33). The set of documents for registering an association consists of:
Documentation is submitted to the tax authority. Further, the chairman opens a current account in a banking institution and ties it to a specific household, makes a seal of the HOA and accepts the building on the balance sheet of the partnership.
The organization of the activities of the established partnership is carried out in accordance with the rights and obligations of the association outlined in the statutory documents. The HOA enters into agreements with enterprises that provide utility services to residents of the house. If repairs are needed, the corresponding work is carried out in-house or by a selected contractor.
IMPORTANT! For the effective operation of the HOA, an estimate of income and expenses is worked out and approved, the amount of costs for major repairs is discussed, and contributions are established for the owners of the premises.
One of the main duties of the partnership is to maintain the proper technical and sanitary condition of the objects entrusted to it. The association must defend the rights of apartment owners and take appropriate measures to prevent illegal actions in relation to the serviced property.
If the charter of the organization does not specify the duration of the partnership, then the created HOA is a full-fledged legal entity with an unlimited duration.
The funds received by the association from the owners of housing and economic activities should be spent on the needs of households and the improvement of the adjacent territory. The positive balance of financial resources at the end of the year is recognized as profit and is taxed.
With the participation of the developer
In buildings under construction, the creation of an HOA is impossible. To form a partnership, it is necessary to put the facility into operation. After that, it is allowed to hold a meeting of owners and decide on the form of management of the house.
Until the purchase of apartments from the developer company, the owner of the premises is considered to be a construction company. Therefore, the participation of its representatives in the general meeting is required.
Create an HOA or hand over the reins of the management company? Creating an HOA is a good alternative to transferring a house to the Criminal Code. Such a step will make the spending of residents on the maintenance of the building more transparent and rational. Of the minuses, it is worth highlighting the laboriousness of the procedure for opening a partnership and its functioning.
