Who and why can declare a meeting decision (minutes) invalid? How to avoid this?
Only a court can invalidate a meeting's decision. The owner who did not take part in the meeting or voted against the decision, as well as the state housing control authorities (GZHI), and the prosecutor’s office in the event of identified violations, can file such a claim with the court.
This can be avoided if all the requirements for the procedure for organizing and holding a general meeting established by Art. 44-48 Housing Code of the Russian Federation, as well as requirements for the preparation of meeting documents, including minutes, established by the Ministry of Construction of the Russian Federation.
To avoid mistakes, it is better to contact specialists for advice and help.
Where to gather?
The place of the meeting is chosen by the initiator; there are no mandatory requirements. It is advisable to rent a hall at a school or in a recreation center, ask local authorities to help with the premises. But if there are no such opportunities, then you can gather in any convenient place - this could be the area in front of the house in good weather, or the hall in the entrance, if it is spacious, or the premises of the management organization, if there is one.
How many owners must participate in the meeting (in person or in absentia) for a quorum to be reached?
In order for a meeting in any form (in person, in absentia, in person-in absentia) to take place, it is necessary that owners with more than 50% of the votes (counted in proportion to their share in the right to common property) of the total number of votes take part (vote) all owners in the house.
The share in the right to common property is, in turn, proportional to the area of the premises owned by the owner. That is, the owner’s vote is “tied” to the area of his premises (apartment, office). Collectively, all owners in the house have 100% of the votes. And if the owners took part in the meeting, the total area of which is more than 50% of the total (that is, which is owned by individuals and legal entities), then the meeting has a quorum.
The authenticity of signatures is not verified, as this is the responsibility of law enforcement agencies.
Therefore, when holding an in-person meeting, registration of meeting participants - owners - is organized. When registering, the participant must provide documents confirming ownership of the premises and identification. This makes it possible to determine the presence of attendance (quorum), as well as check whether the person present is the owner or not.
The same procedure can be organized when accepting ballots for absentee voting, but the law does not require it - sometimes this is not possible.
They say that there should be some kind of minutes of the meeting. Why is it needed, who runs it, and what should be reflected there?
Both the Civil and Housing Codes establish that following the results of a meeting held in any form (in person, in absentia, in absentia), a written protocol is drawn up. It is necessary! The requirements for the preparation of minutes of the meeting are established by the Order of the Ministry of Construction.
A secretary of the meeting is selected to draw up the minutes. The minutes record information about those who took part in the vote, the presence/absence of a quorum of the meeting, the results of the vote count, all decisions made or not made by the general meeting on the agenda items.
Eg:
Thus, 435 forms of decisions of owners, who own a total of 23,781.03 sq. m., were taken into account. m. of premises, which is 55.72% of the votes of the total number of votes of all owners in the house.
In accordance with Part 3 of Art. 45 of the Housing Code of the Russian Federation there is a quorum, which is the basis for recognizing the general meeting as competent to make decisions on issues on the agenda
(In accordance with Part 1 of Article 46 of the Housing Code of the Russian Federation, decisions on the agenda of this meeting are made by a majority vote (more than 50%) of the total number of votes owners of premises, who took part in this meeting )
On the agenda item: On choosing a method for managing an apartment building at the address:_________________: management of the management organization.
LISTENED TO: FULL NAME.
SUGGESTED: Select a method of managing an apartment building at the address: __________________: management of the management organization.
DECIDED (DECIDED) on the agenda item: On choosing a method of managing an apartment building at the address: ________________________: management of the management organization:
DECISION IS MADE.
And if no one in the house really communicates with anyone, half of the apartments are rented out to tenants, and the people are generally inactive, then how can you gather them all?
Who should participate in the meeting besides the owners?
Other persons (employers, representatives of authorities, management organizations, and other invited persons) may be present and answer questions, but without the right to vote.
As for municipal apartments, which are occupied by residents on social rent, their owner is the state. Therefore, at meetings of owners, for example, in Moscow, it will be present in the person of the Department of City Property (DGI) through its authorized representative - GKU IS (State Treasury Institution "Engineering Service") of a particular district of the capital.
Who can/should initiate the meeting? And where should he start to act?
According to the law, a general meeting can be organized by any owner of the premises in the house (please note that this must be the owner, and not the tenant of the property or a citizen living in the house who does not have property in it).
First of all, the initiator of the meeting needs to determine the range of issues on the agenda with which he wants to come up for discussion at the general meeting. Afterwards, decide on the form (in-person, in absentia, in-person-in-absentia), the date, place of the meeting or the place where votes are collected for absentee voting, the place where you can get acquainted with the documents on the meeting, in other words, generate a message for the owners about the upcoming meeting. After which it is necessary to notify all owners in the house about the upcoming meeting.
The law establishes a notice period of no later than 10 days before the meeting.
Notification is usually given in the manner established at a previously held meeting of owners. If such a decision was not previously made at the meeting of owners, then each owner is sent a registered letter, or the message is delivered personally against signature. The initiator can obtain information about the owners of the house from Rosreestr, of course not for free, but most often there is no other way. You can ask for assistance in obtaining such information from government authorities (for example, the district administration, district government), but most likely they will refuse with reference to personal data.
Therefore, if the owner initiates a meeting, he must be prepared for expenses.
The legislator also established that the authorities (in cases specified by law) or the management organization can initiate a meeting on issues of managing the house.
In what form can the meeting be held? For example, what if people want to express their opinions and vote, but not everyone can physically gather due to various circumstances? How can they be?
Owners who physically cannot gather in one place and at one time have the opportunity to hold a general meeting in absentia. This is provided for by both housing and civil legislation.
In the absentee form, the owner votes on the proposed agenda items in writing, that is, he enters into a certain form proposed by the initiator of the meeting - a voting form (ballot) - the necessary information about himself (provided for by the Housing Code of the Russian Federation) and the decision he made on each agenda item (or FOR, either AGAINST or ABSTAINED), and transfers the completed voting form (ballot) to the place of their collection, which is also determined by the initiator of the meeting.
Are meetings possible under any form of house management (MC and HOA)?
Yes, according to housing legislation and when managing a house by a management organization and when managing a HOA (housing complex, housing cooperative), all issues referred to by the Housing Code (Article 44 of the Housing Code of the Russian Federation) to the exclusive competence of the general meeting of owners are resolved at it.
But it should be noted that when managing a house, a HOA (residential complex, housing cooperative) also has a governing body for these associations of residents - this is the general meeting of members of the homeowners association (residential complex, housing cooperative). They can resolve issues that are already within their competence by law and the Charter.
Why do we need meetings of owners at all? What can they decide there and what can’t they decide?
An apartment building is not only a building/structure/structure, but also a community of owners who own not only the apartments in this building, but also a share in the common property, the so-called “common property”. This includes all common areas, technical rooms, stairs, basements, attics, roofs, load-bearing structures, utilities and equipment, elevators and much more, which ensures comfortable and safe living in the house. And this entire economy needs to be managed: it needs to be maintained, maintained, repaired, provided with water, heat, electricity, etc.
And since this is the common property of the owners, then they must resolve all these issues together. This is why meetings of owners are needed, because according to the housing code, the general meeting of owners is the governing body of an apartment building.
The general meeting of owners has the right to resolve almost all issues related to the management, maintenance, repair, and use of common property.
First of all, the law obliges the owners to choose at a general meeting how to manage the house. There are options:
1. Through the management organization
2. Through HOAs, housing cooperatives or residential complexes created by the owners
3 Directly by the owners (if the house is small and there are not many apartments in it)
Also, at the general meeting, the owners determine the list of works for the maintenance and repair of common property, set the rate for maintaining common property, and elect their representatives - the house council.
They can install a set of additional services aimed at improving living conditions, for example, concierge services, installation of video surveillance, barriers, etc.
However, there are issues that are not within the competence of the general meeting - this is, first of all, the establishment of tariffs for utilities/services (they are established by the authorities of the subject of the Federation).
Issues falling within the competence of the general meeting of owners, as well as the procedure for organizing and holding general meetings of owners are regulated by Art. 44 - 48 of the Housing Code of the Russian Federation, in addition, the main provisions on issues of general meetings of owners are reflected in Chapter 9.1 of the Civil Code of the Russian Federation “Decisions of meetings”.
There are no approved forms of meeting documents; there are various methodological recommendations issued at different times, but they are not binding.
To date, only the requirements for the preparation of minutes of meetings have been established by law, approved by Order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated December 25, 2015 N 937/pr.
You can familiarize yourself with regulatory legal acts in legal information systems and other open sources, where you can also find various (but not standardized) examples of protocols and charters.
Where to start?
1. After choosing the council of an apartment building (MKD), it is recommended to hold the first meeting with the elected council in order to get acquainted, communicate, exchange contact information and understand how the council can work most effectively. For example, the council included residents of different professions - lawyer, engineer, economist. It is logical for everyone to have their own area of work in which they understand better than others. In this case, the overall efficiency of the house council will be higher!
2. It is necessary to study the financial and economic activities of the management company (MC) for maintaining your home:
- MKD management agreement;
- the amount of accumulated funds in the house account;
- reports on the work done over the past years;
- tariff structure for maintenance and repairs, prices for services;
- a list of work carried out around the house and the basis for carrying out this work;
- estimates of work performed for analysis and other documents.
3. Together with an employee of the management company (chief engineer or other responsible person), inspect and study the common property of the house, draw up an inspection report, and write down all comments. Pay special attention to destruction, damage and other dangerous aspects. If there are damages, leave a copy of the report in the Criminal Code under the incoming number to eliminate them. Get the cadastral plan from the Criminal Code and find out the boundaries of the land plot under the MKD.
4. Draw up a plan for the necessary work to improve the comfort of living for the next year (for example, participation in a major renovation program, renovation of entrances, installation of a video surveillance system, renovation of a playground, etc.), determine a source of funding, prepare a list for approval at the general meeting of the MKD, carry out general meeting of owners to sign the minutes.
What should be in a management agreement for an apartment building?
1. The composition of the common property of an apartment building in respect of which management will be carried out, the address of such a house, the boundaries of the land plot;
2. A list of services and works for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the management organization;
3. The procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and the amount of payment for utilities, as well as the procedure for making such payment;
4. The procedure for monitoring the management organization’s fulfillment of its obligations under the management agreement.
5. If you are not satisfied with the current version of the agreement, it is necessary to make a protocol of disagreements to the agreement, discuss the working version with the lawyers of the management company, then agree on it by a general meeting of residents and submit the final version to the management company.
How to control?
1. The certificates of work performed in relation to the common property of the apartment building must bear the signature of the chairman or his replacement. Accordingly, it is necessary to check and personally control the work performed - together with the foreman or engineer, before signing the act, inspect the place of work, make sure of the quality, compliance with the volumes and timing of the work performed, and demand that the cost of these works be indicated in the act (if there is none).
2. Periodically obtain from the Criminal Code a list of the work performed and a certificate of the status of the personal account of the house, and monitor changes.
3. If difficulties arise with deciphering the cost estimate, the quality or volume of work performed, you can attract specialists from specialized companies or ask for an inspection by specialists from the Construction Supervision and Housing Control Service.
How to hold a general meeting?
1. All decisions of homeowners must be made at the general meeting of the apartment building. The order and procedure of the general meeting are prescribed in the Housing Code of the Russian Federation (Articles 44-48). It is necessary to notify all residents of the meeting 10 days in advance (announcements at/in entrances, public areas). There are two types of meetings:
- face-to-face (all residents gather at an appointed place at the appointed time and date);
- absentee (each owner is given a voting sheet with an agenda of issues against his signature).
2. It is necessary to strictly follow the procedure of the meeting, otherwise any of the owners may challenge the decision of the meeting in court.
3. We recommend that you pay attention:
- an announcement about the meeting is posted 10 days before the meeting;
- the announcement must indicate the place, time, agenda of the meeting, as well as who is its initiator and his contact information;
- in the agenda of the meeting, one of the items must indicate the choice of the secretary, chairman of the meeting, and the counting commission;
- if an in-person meeting did not take place (it is very difficult to gather 50% or more of the owners in the courtyard of an apartment building), then at the meeting a decision is made on absentee voting, an announcement about which is also posted in advance, the agenda for absentee voting must completely coincide with the agenda for in-person voting (cannot be changed).
How to change management company?
1. Owners of apartment buildings can choose any form of house management.
2. To change one management company to another, it is necessary to hold a general meeting in accordance with the Housing Code of the Russian Federation at which the owners will make a decision to change the management company.
3. Notify the previous management company of the owners’ decision in writing (with a copy of the decision, and also indicate the specific date from which the new management company intends to begin managing the house). The payment period for utility services in accordance with the legislation of the Russian Federation is set equal to a calendar month. Accordingly, it is advisable for the start date of house management to coincide with the first day of the month.
4. The head of the previous management company, within seven days after receiving the notification, notifies the energy supply and utility services of the city about the termination of contracts for this house, unless a different period is established by the energy supply contract or the contract for the supply of utilities.
5. The previous management company transfers to the newly selected management company, and it accepts: a technical passport for the house and copies of other technical documentation, passport service documentation, accounting documentation and other documents.
6. If it is not in all cases possible to reach agreement on the terms and conditions of the documentary transfer of the house when changing the management method, as well as on other issues that impede the proper management of an apartment building, the interested party must apply to the prosecutor's office or court for resolution of the dispute.
What to remember?
1. All decisions are made only by the general meeting of owners. It must be remembered that, for example, three people can live in an apartment, but only one owner can be - only he has the right to vote.
2. All votes are calculated based on the total area of the apartment to the total area of the house.
3. All decisions, all actions are documented, all requests to the Criminal Code, authorities and other institutions go under the incoming number, a copy is saved. The general meeting was held and minutes were drawn up. Complaint/appeal – copy with reference number. Be sure to keep all documents!
4. The work of the council at home is not an instant solution to problems and tasks that have accumulated over several years. Doing everything at once and quickly is very difficult. Therefore, the work of the MKD council is gradual, designed for at least one to two years.
5. Involve residents in the work of managing the house, monitoring the management and maintaining order. The property boundary is not the threshold of the apartment, or even the entrance, but the boundary of the land plot (yard).
Organizing the management of apartment buildings is a serious matter. It implies knowledge in various areas of legislation. First of all, this condition is relevant for legislative norms that have been developed in the field of housing and communal services. The number of accepted documents is growing every year. It is very difficult to navigate them. The life of people in apartment buildings differs significantly from living in the private sector. First of all, this is determined by many difficulties, solutions to which must be sought together, by the majority of owners. In order to maintain the building most productively, you should first understand the organization of management of apartment buildings, the option of which will suit every owner.
What is the organization of MKD management?
The organization of management of apartment buildings implies that all property owners (or their proxies) will act in concert.
This work focuses on:
- conservation of real estate and its appropriate use;
- provision of various utilities to residents of the house;
- creating comfortable living conditions.
Owners in apartment buildings need to choose the type of organization for real estate management.
This problem must be solved without fail. After all, the right of ownership turns into responsibility for the condition of the property. You also need to ensure that the property does not cause any harm to others due to its poor condition.
The organization of management of the apartment building includes its maintenance in proper condition. In other words, managers are obliged to:
- maintain cleanliness in areas intended for public use, as well as in the surrounding area;
- monitor public utilities, sign agreements with resource supplier organizations;
- monitor the condition of all technical systems of the structure, etc.
The Decree of the Russian Government “On the approval of standards and rules for managing apartment buildings” has undergone a number of changes. Nevertheless, the main idea of this document has remained unchanged.
The standards speak about the rules of work for organizing the management of apartment buildings. In addition, they determine the area of competence of officials and regulate the decisions they make. In accordance with the terms of the Standards, the residents themselves (and their associations), as well as utility service providers and management organizations, the authorities of the constituent entity of the Russian Federation and local authorities, participate in management.
According to the terms of the Standards, management organizations must provide owners with the opportunity to familiarize themselves with information about their affairs. This means that any interested person can see a list of services provided by the management company, read their description, and find out about the fee for each service.
Each of the forms of organizing the management of apartment buildings is accompanied by individual difficulties.
For example, it is sometimes difficult to come up with a general solution. The more people live in a house, the more difficult it will be for them to come to a common opinion.
If the apartment complex is managed by a third party, the integrity of the management company is of great importance in this situation.
There is a high probability that the management organization is directing the owners’ funds to the wrong place where they should go according to the law. As a result, all this results in long proceedings and the upcoming protracted re-election of the board.
Among other things, you need to keep in mind: the autonomous organization is not very interested in maintaining the house in proper condition. Without oversight, a large number of issues may simply go unaddressed.
In what ways is it possible to organize the management of apartment buildings?
Currently, according to the law, there are three options for organizing the management of apartment buildings.
Each of these paths has both negative and positive sides. Depending on the circumstances, different methods of organizing governance are suitable for citizens. However, there is no significant difference between the options. The Housing Code and laws relating to management in this area clearly state the responsibility of the head of the management organization. Whatever it is, residents must use utilities in a timely manner and in full. This also applies to services related to cleaning common areas. Property owners must enjoy free access to information about the organization and its activities.
Method 1. Management of an apartment building by a homeowners association (HOA)
Housing cooperatives and homeowners' associations are two associations that are almost identical in meaning in terms of management of apartment buildings. If such a management organization is chosen, then the residents hold a general meeting at least once every two years, at which the chairman of the board is elected by voting (by a majority vote). The appointment of members of this board follows the same pattern. The person who becomes the chairman of the board takes responsibility for all the work that will be carried out in the house. If suddenly he does not show any desire to work on your complaints and requests that relate to poor-quality provision of utility services, you can safely go to the regulatory organizations. The chairman receives his salary from the pockets of citizens. His responsibility is to eliminate all shortcomings.
Such management organizations have significant differences. Housing cooperatives can be created exclusively in an apartment building, which at one time was built with the help of contributions from members of this cooperative. It is also worth remembering that with such initial conditions it will be possible in the future, if desired, to change management to an HOA or management of an organization. But there is no turning back now.
An HOA can appear in any apartment building. It can also be formed in several apartment buildings. However, there is one condition: the houses must have common communications. In the HOA, a majority vote allows changing the management organization to management of the management company.
If there is no knowledgeable person in the house who wants to deal with the apartment building, but the residents do not want to change management, the housing cooperative or HOA has the right to sign a standard agreement for managing the apartment building with the management organization. In this case, it is not necessary to change the control itself. And from the moment this document is signed, all problems related to public services will become the responsibility of the management organization.
Method 2. Management of an apartment building by a management organization (MC)
Managing apartment buildings with the help of a management company is the most common option. An arbitrary number of buildings located in any territory can be combined into a management company. The management organization is primarily a commercial entity for profit. In this regard, the decision on the amount of workers’ salaries belongs to the director of the organization, and not to the residents. The management company has the right to sign documents both with apartment owners and with the HOA or housing cooperative (if the residents vote for such conditions). Sometimes we are not talking about management services, but only maintenance. This option is good for those who have chosen direct management organization (or in those houses where money is paid directly to suppliers).
An innovation in the organization of management of apartment buildings is the law on licensing of management companies. From now on, management companies must obtain a license. This is necessary so that supervisory authorities can remove unscrupulous players from the market. However, such firms are not given the opportunity to recover. In addition, this innovation does not allow the creation of situations in which several organizations are associated with one MKD.
It is not too difficult for a company just entering the market to obtain a license to manage apartment buildings. She will need to write an application to the State Housing Inspectorate. Then the director of the management company will have to pass an exam. The last step is paying the state fee. It happens that an organization fails to cope with its assigned responsibilities. This becomes clear if the control authorities are inundated with requests from residents. In this case, the State Housing Inspectorate can, firstly, remove this house from the list of houses that are under the management of the organization, and secondly, the control authorities can completely revoke the license. Such new conditions were aimed at enhancing the transparency and clarity of the work of the management company.
Method 3. Direct management of an apartment building
The organization of management during the direct management of MKD is quite simple if we consider its structure. But with regard to the management itself, this option is quite labor-intensive.
You can arrange direct management in an apartment building if there are a maximum of 30 apartments. This control method is only for small houses. This organization of management of apartment buildings assumes that the residents themselves will take care of everything: utilities, repairs and maintenance of their home, and everything else. And when responsibility lies with everyone at the same time, it means that no one has it. If there is any violation, there will be no talk of criminal or administrative liability. The only thing that can be expected from organizations exercising control in this area is that they will try to oblige the municipality to put the house up for competition to conclude a management agreement with the management company.
This will happen if residents are unhappy with their living conditions. If citizens are satisfied with direct management, in which all services come directly from resource supply companies (and payment in this case goes without intermediaries), if people independently solve the problem of cleaning and garbage removal, then this method of organizing management is best. There is one important point here: it is necessary to correctly draw up the minutes of the general meeting at which to elect the council of the MKD. If property owners are unable to provide accommodation with a minimum of services, a management agreement can be entered into with a specialized organization for working in the house.
How is the organization of management of apartment buildings regulated by law?
Until the moment the new Housing Code of the Russian Federation was adopted, the management of apartment buildings was in the sphere of activity of housing and communal services or special services. These structures were appointed by the municipality without notifying the residents. Thus, it was completely impossible for third-party organizations to penetrate the housing and communal services market. As a result, there was zero competition in this field of activity. And there was no interest in improving the quality of services provided.
After the revision of the Russian Housing Code, real estate owners were given the right to think for themselves about the type of organization of management of apartment buildings. From now on, residents of the apartment complex had to organize a general meeting. And there it is mandatory to choose the method of organizing management that seems best to them.
However, the current legislation had its shortcomings. For this reason, the LCD was adjusted in the summer of 2011. Now the municipality and the residents themselves have powers to control how management organizations carry out their work. New inclusions in the laws indicate that an HOA cannot be formed while the house is still under construction. Plus, the developers themselves also do not have the right to directly participate in the creation of this management structure.
Among other things, the new standards allow residents to make utility payments directly through resource providers, avoiding the management organization.
In what order is the choice of the method of organizing the management of MKD made?
Residents of apartment buildings at a meeting (Articles 45-48 of the Housing Code) must choose a convenient method of organizing management.
Yes, they should, and nothing else. Indeed, according to the law, along with the right to own some property, citizens and legal entities also bear responsibilities of a certain kind. They are responsible for the proper maintenance of this very property. It must not harm the property or health of both the owner and third parties.
The initiator of the meeting (both on the correction of the management method of the apartment building and on the issue of its selection) is any owner (as well as their group, including representatives of the municipal share of ownership in the apartment building).
The general meeting is valid when citizens or their representatives are involved in it with 50% of the votes from all (Article 42 of the LC). The decision on the choice of method for organizing the management of apartment buildings is recognized as valid if more than 25% of votes were cast for it.
The decision that was made by the meeting is binding on all owners. Those residents who did not take part in the vote also fall under its influence. Those who voted against will also be forced to agree with the general decision.
If the owners want, then at any time, with the help of a decision of the general meeting, they can change the organization of management of the apartment building.
The owner is allowed to challenge the decision of the meeting, made in disregard of the requirements of the Housing Code, only in court.
Employees of the State Housing Inspectorate may apply to the court to invalidate a decision of a meeting made in violation of the terms of the Housing Code.
Only through the court and only the owner has the right to challenge the decision of the meeting if he was not there or voted against it, and the decision affects his interests and rights.
An application for appeal is submitted to the court within six months from the day the citizen learned or should have learned about the decision. For citizens who missed the procedural deadline for good reasons, it can be restored (in accordance with Article 112 of the Civil Procedure Code).
If the court does not restore the deadline, any tenant who does not agree with the decision can initiate another meeting, putting to a vote the question of canceling the previous decision.
The signing of which contracts implies the organization of management of apartment buildings?
When managing an apartment building by a homeowners association(housing complexes, other consumer cooperatives) these legal entities sign various documents. This includes a management agreement for apartment buildings and contracts for the provision of utility services. Signatures are also required for the agreement on the maintenance and repair of common property in the apartment building and other agreements.
There are two schemes of contractual interactions that develop between residents of apartment complexes and organizations providing housing and communal services when managing the hands of residential complexes and homeowners associations:
- Residents of apartment buildings entrust the right to sign documents to the HOA (PK, LCD), and the HOA (PK, LCD) already draws up and signs a management agreement with the management organization. She, in turn, finds service providers and signs contracts with them on behalf of the HOA (PC, LCD).
- Residents of apartment complexes are allowed to sign papers for the supply of HOA services (PC, LCD). This is included in the decision of the meeting, in the management agreement, in the charter of the HOA, PC, LCD.
When choosing a method for managing an apartment building by a management organization Residents sign management agreements containing information about:
- works and services for the repair and maintenance of common property in apartment buildings, an algorithm for correcting the list of these same services, a list of utilities for which the organization is responsible;
- the composition of the common property of the apartment building, the address of the house;
- the principle of monitoring the organization’s fulfillment of obligations;
- how the cost of the contract is determined, how the amount of payments for repairs and maintenance, for utilities is calculated, and what the sequence of payment is.
The management agreement with the management organization corresponds in its content to the agreement for the provision of paid services provided for by the civil legislation of Russia.
According to the terms of Article 780 of the Civil Code, the contractor (in this case, the management organization) must provide services independently (unless other conditions are specified in the contract for the provision of paid services). Thus, the organization either on its own provides residents with part of the utilities under the terms of the management agreement for the apartment building, or (another option) acts as a link between service providers and the residents of this building.
Contracts with service provider organizations are signed by the management company not on its own behalf, but on behalf of the residents.
Under direct control MKD has several ways of cooperation with organizations that provide public services:
- Agreements are drawn up with all (possibly with the majority) citizens. All or most of the owners are one party to the document.
- By decision of the meeting, in matters that relate to work with third-party organizations, one of the residents may appear by proxy from the others.
- Papers are signed with each tenant on their own behalf.
Current legislation very fully reflects the established schemes in organizing the management of apartment buildings. Thanks to the norms prescribed in the laws, people can choose the most comfortable management for themselves in order to put into practice their right to dispose of property.
How is the management of apartment buildings organized if the method of owner management is not chosen?
If citizens living in an apartment building, a year before competition at the general meeting they were unable to choose a specific management organization (or the decision was not implemented), the Housing Code instructs local authorities to organize an open competition for the management company to manage the apartment building.
If the decision to organize management was not made independently by the owners, the state government, no later than a month before the expiration of the apartment management agreement (based on the results of the competition), must hold a meeting of owners to decide on the option for managing the apartment building.
If, before the completion of the contract, the owners did not settle on a specific management organization (or the decision was not implemented), the authorities again hold an open competition.
Documentation forms are contained in Government Decree No. 75 dated February 6, 2006 “On the procedure for holding an open competition by a local government body for the selection of a management organization to manage apartment buildings.” They cannot be modified either by the competition organizer or by state authorities of a constituent entity of the Russian Federation.
Open competitions are organized on the basis of such principles:
- fair competition;
- formation of identical conditions of participation for legal entities of any organizational and legal form and individual entrepreneurs;
- availability of information about the competition and ensuring openness of its conduct;
- effective use of citizens' money for safe and favorable conditions for using premises in apartment buildings;
- proper maintenance of common property in the apartment building;
- provision of utilities to citizens using premises in the house.
For open competitions and summing up the results, the organizer forms competition commission. It cannot include individuals who are personally interested in the outcome of the event. If such persons are discovered, the organizer must immediately remove them from the commission and appoint other persons.
Representatives of housing cooperatives, residential complexes, homeowners' associations and other specialized consumer cooperatives, as well as public associations of consumers (their unions, associations) are allowed to attend meetings of the competition commission.
Notice of the competition placed by the organizer (or on his behalf by a specialized company) in the official press and published on the official website no less than 30 days before the deadline for submitting applications for participation.
According to the terms of the Rules of the event, the winner is the organization that offered to do the largest amount of work on the repair and maintenance of common property in the apartment building for the fee specified by the organizer.
On the basis of Part 5 of Article 161 of the Housing Code, local authorities, within 10 days from the date of the competition, must notify all owners in the apartment building about the results and provisions of the management agreement.
The one who wins the competition, within 20 days from the date of approval of the competition protocol, sends the signed draft agreements for the management of apartment buildings to citizens for signing in the manner prescribed by Art. 445 of the Civil Code of the Russian Federation.
Residents must sign the management agreement with the winning organization.
The MKD council is not a fighter between two camps, but a link between the management organization and the residents of the house. Mikhail Ternovoy, head of the branch of the Association of Chairmen of the Councils of Moscow Region in the city of Moscow region, told how to work with both. Chernogolovka.
The MKD Council performs certain functions for managing MKDs and works closely with management organizations. Perhaps one of its main functions is to ensure the implementation of the decisions of the general meeting of owners.
For example, the OSS decided to hand over part of the common property for a certain amount and authorized the management organization to do this. The MA handed over this property, but for a lesser amount. In such a situation, the MKD Council must solve the problem directly with the MA, and if it does not help, contact the State Housing Inspectorate or the court.
The MKD Council submits issues for discussion to the OSS:
- on the procedure for using the common property of the apartment building;
Typically, such issues are dealt with by the management organization, which submits them to the OSS, ahead of the House Council. But if the MKD Council is active, it can take matters of use of common property into its own hands.
- on the procedure for planning and organizing work on the maintenance and repair of common property;
This is also done by the management organization, so it is convenient to interact with it and coordinate the work proposed by it. MKD councils are often involved in managing the house at the regional level. For example, the Ministry of Housing and Public Utilities of the Moscow Region issued an order dated August 18, 2015 No. 188-RV, which stipulated that the form of a seasonal inspection report of the common property of the apartment building must include the signatures of representatives of the House Council.
- on the procedure for discussing draft agreements concluded by owners in relation to common property and the provision of utilities;
The councils of apartment buildings present their opinions to the owners of the premises on the terms of the draft agreements proposed for consideration at the general meeting. If the owners of the house are active, the House Council discusses the terms of the management agreement with the management company.
If the parties agree, the conclusion will be positive; if they do not reach an agreement, the MKD Council can inform the owners of the reasons why such an agreement should not be concluded.
- on issues within the competence of the MKD Council.
Among other things, the Council of MKD presents proposals to the owners of premises in MKD on issues of planning the management of MKD - that is, on the choice of the form of management.
The council of apartment buildings exercises control over the provision of services and (or) performance of work on the management of apartment buildings, the maintenance and repair of the common property of the house, and the quality of utilities provided to the owners.
If the management authority is interested in interacting with the MKD Council, it will provide certificates of completed work; if not, the owners will have to seek the completion of work and receipt of reports, including through the Civil Housing Inspectorate.
Mikhail Ternoy concludes that if a reasonable balance of interests is found, then the MKD Council and the management organization can achieve mutually beneficial cooperation. If the management company pursues only one goal - making a profit, then it will be difficult to negotiate and get work from it; it will be easier to change the form of management.
The MKD council is a building management body that primarily represents the interests of the owners, so it needs to learn how to interact with them.
It is necessary to bring information to the residents of the building about the work of the management organization, and come up with proposals for improving the living conditions in the apartment building. It is mandatory to provide an annual report to the owners and conduct an annual OSS so that they can see that the House Council is really working and taking care of their interests.
He states, “Interact with property owners and you will be surprised how many people are willing to help improve the quality of life for themselves and their neighbors.”
To establish interaction with the organization managing the house and become a good representative of the residents, Mikhail Ternovoy advises doing the following:
1. Understand the composition of the common property of the house.
To work, it is necessary to understand and know the quantitative and qualitative characteristics of the common property of the apartment building, because the costs and possible income of the apartment building depend on this. Inspect everything: premises, engineering equipment, elevators, cleaning area, land, roof, etc.
2. Review the current management agreement.
Check whether the terms of the management agreement comply with your requirements and current legislation.
3. Study the management organization’s report for the previous year.
From the report you can see for what purposes the management organization spent the owners’ funds. Check the list of works and services that are provided to you for compliance with RF PP No. 290 and the real needs of the house. Perhaps the MA provides services that the home does not currently need, or at inflated prices.
4. Get to know the management of the property management company, the caretaker technician or similar personnel of the property management company servicing your home.
5. Conduct a meeting of the House Council with the management of the UO.
Try to negotiate management agreement terms that suit you. The meeting should not be a one-on-one meeting, but rather that of the MKD Council. Make it clear that you have one common position.
6. Deal with major repairs.
Find out for what year and what work is planned for your home by the regional fund and what work is really needed in your home in the near future.
Watch the video recording of the online seminar “Rules of life for the chairmen of the MKD Councils” to find out who and how controls the activities of the chairman of the MKD Council, whether it is possible to assign remuneration to the MKD Council and how to do this.
You will also find out whether it is possible to delegate the powers of the OSS to the MKD Council and what to do if the owners do not want to create an MKD Council.
Many apartment owners in the Russian Federation prefer to manage the property of their building together with other residents in the form of an HOA. The creation of such a structure is quite strictly regulated by law, however, the implementation of this initiative assumes a completely logical scenario. How to organize an HOA in a house? What legislative nuances should you pay special attention to?
Home control options
Homeowners in apartment buildings must somehow organize joint management of common property, ensure the supply of utilities to the building and maintain its technical condition. This can be done within three schemes.
Firstly, there is an option to organize direct management of the house by the homeowners. This is possible if it has no more than 16 apartments.
Secondly, you can create a homeowners' association or cooperative.
Thirdly, you can transfer the house to a management company.
Which of these options is better? Why do many citizens wonder how to create an HOA in their home?
The fact is that a homeowners' association is usually more economically feasible. There are no opaque markups on basic utilities. And also, communication between apartment owners contributes to building constructive relationships between neighbors, jointly solving possible difficulties in managing the house, which the management company cannot always competently resolve.
Let's take a closer look at some of the distinctive features of HOAs.
Peculiarities
If the residents of the house decide to create an HOA, they will be able to take advantage of a number of advantages related to the organization of management of common property and the supply of housing with the necessary types of utilities.
For example, a homeowners association can solve some problems on its own or attract external contractors. If the HOA has entered into an agreement with a service organization, then it has the right to control the quality of the provision of relevant services. The HOA contractor must ensure that its functions are performed so that the result meets the criteria established by the Government of the Russian Federation in relation to utility services.
The HOA is responsible for the maintenance of property under general management in accordance with the criteria established in technical regulations, as well as legal acts approved by the Government of the Russian Federation.
Thus, an HOA is not only an opportunity, but also an additional obligation of owners to their neighbors; it is a responsibility and willingness to study various nuances related to the management of common property and the organization of the use of relevant utilities by residents.
Who can create an HOA?
A homeowners' association can be organized for the purpose of jointly managing common household services by residents of one or more apartment buildings located on one or bordering land plots. Also, several buildings built nearby can be united in an HOA, even if each has the same owner. Homeowners' associations can be formed by summer residents, and the structure of the partnership may include personal plots, garages and other objects related to the residential infrastructure.
How to organize an HOA? Let's look at several stages of implementing this initiative.
Informing residents
The first stage involves organizing a general meeting of owners. However, it is preceded by the collection of the necessary information about the residents of a house or group of buildings. The relevant information can be requested from the territorial office of the Federal Registration Service. You may also need information about the rooms that are represented in the structure of the house. It should be requested from the BTI.
Next, you should create an initiative group of owners responsible for holding a general meeting of residents. As a rule, these same people are responsible for how to organize an HOA and at all subsequent stages of creating a partnership. Therefore, the appropriate team should be formed from citizens who have enough time to engage in this socially useful activity.
The best way to convey information
The initiative group of owners must subsequently send written notices to other residents that a general meeting is coming. This document must indicate where the event will be held, who is responsible for organizing it, and who you can contact to ask any questions. The contents of the meeting agenda must also be included in the notice. An important nuance: if there is, for example, a store in the house, then the document must also be sent there.
It is advisable to send the notices in question by registered mail. You can, of course, hand them over to the residents personally, but you should take a receipt from them for receipt of the document. Notifications must be sent out 10 days before the general meeting. Members of the initiative group must retain documents confirming that residents are familiar with the information.
The next important stage in deciding how to quickly and cost-effectively organize an HOA involves actually holding a general meeting. Let's consider the relevant nuances.
General meeting
The main decision-making tool at the general meeting of owners is voting. Therefore, people who are responsible for how to organize an HOA should prepare special forms to express the will of the residents. The structure of these documents is very simple - these should be tables with your full name, as well as columns “For”, “Against” and “Abstain”. 
At the beginning of the meeting, its chairman must be elected - by a majority vote of the owners who came. You also need to choose a secretary who will keep minutes of the residents’ meeting. It is important that more than two-thirds of the residents of the building who have the right to vote are present at the event. This is a prerequisite for how to properly organize an HOA. What will be decided at the meeting is mandatory for all residents, even those who did not come to the event. If it was not possible to gather two-thirds of the owners, the initiative group will have to repeat the work of organizing the meeting. It is possible that they will have to include a campaign component in their activities.
During the general meeting, residents decide that a partnership will be formed, they approve the charter of the HOA, elect members of its board, and also appoint an audit commission.
Drawing up minutes of the meeting
After the HOA meeting has been successfully held, it is necessary to record its results in the minutes. This document is the most important from a legal point of view when deciding how to organize an HOA in a house. The protocol must be prepared by the initiative group and comply with the provisions of the Housing Code of the Russian Federation.
The document in question must contain information about the initiator of the meeting, the issues that were discussed, and the voting. The most important point of the protocol is information about how many people came to the meeting, as well as the correlation of the area of their apartments with the general indicator of the entire building.
Within 10 days after the meeting, residents must be familiarized with the minutes. You can make several photocopies of it and hang it on entrances or special information stands, place it in mailboxes, and if possible, hand over copies to residents personally.
The charter is the key document of the HOA. Let's consider the features of its composition.
Approval of the charter
Approval of the charter is the most important condition for resolving the issue of how to organize an HOA in a legal manner.
The structure of the document should contain points covering:
- general provisions;
- wording reflecting the goals and activities of the HOA;
- legal status of the HOA;
- ownership of premises in the house;
- funds, property of the HOA;
- economic activities of the HOA;
- membership features;
- rights and obligations of the HOA and its members;
- HOA governing bodies;
- nuances of holding a general meeting of the partnership;
- provisions on the reorganization and liquidation of the HOA.
The bylaw can only be approved if more than two-thirds of the homeowners vote in favor.
HOA registration
The next step in deciding how to organize a homeowners' association is the actual registration of the HOA. The agency that is responsible for this procedure is the Federal Tax Service.
To register an HOA, you need to pay a state fee, fill out an application (its form will be issued by the Federal Tax Service), have this document certified by a notary, take 2 copies of the charter, 3 notarized copies of the minutes of the meeting and take all this to the territorial office of the Federal Tax Service in the city. After the department registers the HOA in the prescribed manner, members of the board of the association need to open a bank account. After this you can start working.
Formalities upon completion of registration
Let's consider some of the nuances characteristic of the final stages of creating an HOA. We have studied how to organize a partnership in terms of a general meeting and approval of the charter. But the board needs to take a number of other actions required by law. So, for example, if before the creation of the HOA the house was owned by a management company, then it is necessary to notify it in the prescribed manner that the owners decided to take care of the maintenance of the housing themselves and created a partnership.
The transfer of the house to the management of the HOA is carried out with the participation of a special commission. Its members include representatives of municipal authorities, as well as the governing bodies of the established partnership. During this stage of legal relations, the house is recorded on the balance sheet of the HOA in accordance with the transfer and acceptance certificate.
We looked at how to organize an HOA and how a house is accepted from the management company. What are other important actions of the management bodies of the partnership after receiving all the necessary powers? For example, soon after successful registration of the HOA and related procedures related to the acceptance of the house, it will be necessary to conclude agreements with service companies for the provision of utility services. Another important component of the work is organizing a system for calculating payments for house maintenance.
We learned how to create an HOA. The step-by-step instructions compiled by us touch on the key points of this procedure. It can be noted that the housing legislation of the Russian Federation is adjusted quite often. Therefore, the initiators of collective management of the house should periodically monitor relevant changes in legal acts so that the work of the HOA is completely legal.
Organization of HOA: legislative nuances
Let's look at some of the legal nuances of creating an HOA. How to organize a partnership in full compliance with the law is a question that is relevant at every stage of the implementation of the corresponding initiative of homeowners. What should the initiators of creating an HOA pay special attention to in terms of ensuring that their activities comply with the requirements of the law?
For example, if there is a question about how to organize a homeowners association in a new building, then the first thing you should pay attention to is that the house must be put into operation by the time work on creating the partnership occurs.
Another important aspect is that the minutes drawn up based on the results of the general meeting must be signed by everyone who voted for it. If this criterion is not met, the Federal Tax Service will refuse to register the partnership.
If an HOA is created by the owners of private houses or summer cottages, then the corresponding decision must be made by everyone who owns the relevant real estate. In turn, if we are talking about electing the chairman of the HOA board, then it is permissible for at least two-thirds of the owners to vote.
Home management to HOA
Among the legal categories that are quite new for the legislation of the Russian Federation, related to the organization of management of common property, is the council of an apartment building. This public structure is intended to replace the HOA or management company due to their temporary absence. An apartment building council must be created if there are more than 4 apartments in the building. Just as in the case of an HOA, it is assumed that the chairman of this body will be elected. He must be one of the owners of the apartments included in the structure of the apartment building. If residents do not create an apartment building council, then the municipal authorities themselves will have to initiate a general meeting of apartment owners.