LEGAL STATUS of housing cooperatives
N.N. SHISKOEDOVA
Currently, housing construction cooperatives (HBCs) are not uncommon, so we decided to pay attention to this association of owners, its legal essence, and the peculiarities of accounting and taxation. The article will discuss the legal basis for the activities of housing cooperatives.
Housing cooperative is an NPO in the form of a consumer cooperative
In paragraph 4 of Art. 110 of the Housing Code of the Russian Federation stipulates that a housing cooperative is a consumer cooperative. Art. is devoted to a consumer cooperative as a type of non-profit organization. 116 of the Civil Code of the Russian Federation. According to it, a consumer cooperative is a voluntary association of citizens and legal entities on the basis of membership in order to satisfy the material and other needs of the participants, carried out through the pooling of property share contributions by its members.
Members of a consumer cooperative are required to cover the resulting losses by making additional contributions within three months after the approval of the annual balance sheet. If this obligation is not fulfilled, the cooperative may be liquidated in court at the request of creditors. Members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid portion of the additional contribution of each member of the cooperative.
In turn, the income received by the consumer cooperative from business activities carried out by it in accordance with the law and charter is distributed among its members.
In the Letter of the Ministry of Economic Development of Russia dated April 10, 2008 N 4416-AP/D05, it is noted that there are two main types of consumer cooperatives:
- cooperatives that, within the framework of their main statutory activities, are engaged in economic activities, making a profit;
- cooperatives, the main activities of which are costly, and the costs are incurred through the share contributions of members of the cooperatives.
Housing cooperatives belong to the second type of cooperatives, cost-based.
According to paragraph 6 of Art. 116 of the Civil Code of the Russian Federation, the legal status of consumer cooperatives, as well as the rights and obligations of their members, are determined in accordance with the Civil Code of the Russian Federation and the laws on such cooperatives.
In order to determine the legal status of housing cooperatives, such a law for them is the Housing Code (Chapter 11).
Important. Law of the Russian Federation of June 19, 1992 N 3085-1 “On consumer cooperation (consumer societies, their unions) in the Russian Federation” and Federal Law of January 12, 1996 N 7-FZ “On non-profit organizations” do not apply to housing cooperatives due to direct instructions on this in Art. 2 and paragraph 3 of Art. 1 of the named Laws respectively. The provisions of the Federal Law of December 30, 2004 N 215-FZ “On Housing Accumulation Cooperatives” also do not apply to housing cooperatives (see the explanations of the State Housing Inspectorate of St. Petersburg on this issue in paragraph 1 of the Letter dated July 17, 2008 N 01-1462/08 -0-1).
Legal status of housing cooperatives
According to Art. 110 of the Housing Code of the Russian Federation Housing cooperative is a voluntary association of citizens, as well as (in certain cases) legal entities on the basis of membership in order to meet the needs of citizens for housing and manage apartment buildings.
Members of the housing cooperative with their own funds participate in the construction, reconstruction and subsequent maintenance of apartment buildings. At the same time, the housing cooperative, in accordance with the legislation on urban planning, acts as a developer and ensures the construction or reconstruction of apartment buildings on its land plot in accordance with the building permit issued to such a cooperative.
The following can become members of the housing cooperative (clause 1 of article 111 of the Housing Code of the Russian Federation):
- citizens who have reached the age of 16 years;
- legal entities in cases established by law (meaning those legal entities that were members of housing cooperatives created before December 1, 2011 - they retain the right to membership in these cooperatives after making appropriate changes to the Housing Code of the Russian Federation);
- legal entities that are the owners of premises in an apartment building, if the housing cooperative manages the common property in this building.
A housing cooperative must have at least five members. On the other hand, the total number of members of such a cooperative should not exceed the number of residential premises in the apartment building under construction.
According to the provisions of Art. 112 of the Housing Code of the Russian Federation, the decision to organize a housing cooperative is made by a meeting of founders, in which persons wishing to organize such a cooperative have the right to participate. The decision to organize a housing cooperative and approve its charter is considered adopted provided that persons wishing to join the housing cooperative (founders) voted in favor. These persons become members of the housing cooperative from the moment of its state registration as a legal entity. Naturally, the decision of the meeting of the founders of the housing cooperative must be formalized in minutes. As explained in paragraph 3 of the Letter of the State Housing Inspectorate of St. Petersburg dated July 17, 2008 N 01-1462/08-0-1, each member of the cooperative at the general meeting has one vote (by membership).
The legal status of housing cooperatives is determined not only by the norms of the Civil and Housing Codes, but also by the charter of the cooperative. Moreover, the judges believe that the main significance in regulating the organization and conduct of the activities of a housing cooperative belongs to its charter, since the legislator delegated most of the rules regulating the activities of housing cooperatives to the discretion of the members of the cooperative, who, when developing the charter, can expand their capabilities to manage this legal entity ( Determination of the St. Petersburg City Court dated March 27, 2013 N 33-4343).
Due to the requirements of Art. Art. 52, 116 of the Civil Code of the Russian Federation and Art. 113 of the Housing Code of the Russian Federation, the charter of the housing cooperative must contain the following information:
- the name of the cooperative, and the name must contain the word “cooperative”;
- its location;
- subject and goals of the activity;
- procedure for joining the cooperative;
- sizes of entrance and share fees;
- composition and procedure for making entrance and share contributions;
- the procedure for leaving the cooperative and issuing a share contribution and other payments;
- liability for violation of obligations to make share contributions;
- composition and competence of the cooperative’s management bodies and control bodies over its activities;
- the procedure for making decisions, including on issues on which decisions are made unanimously or by a qualified majority of votes;
- the procedure for covering losses incurred by members of the cooperative;
- procedure for reorganization and liquidation of the cooperative. By the way, a housing cooperative can only be converted into a homeowners' association (Article 122 of the Housing Code of the Russian Federation);
- other provisions that do not contradict current legislation.
Management of housing cooperative activities
Controls
The governing bodies of housing cooperatives are (Article 115 of the Housing Code of the Russian Federation):
- general meeting of members of the cooperative;
- conference, if the number of participants in the general meeting of members of the housing cooperative is more than 50 and this is provided for by the charter of the cooperative;
- Housing cooperative board and chairman of the board.
In any case, the highest governing body is the general meeting of members of the housing cooperative or a conference, which are convened in the manner established by the charter. It is the general meeting of the members of the housing cooperative that elects the governing bodies of the cooperative and the bodies for monitoring its activities. The competence of the general meeting of members of the housing cooperative (conference) is determined by the charter of the cooperative.
Current legislation establishes minimum requirements that must guide members of housing cooperatives when holding meetings, voting and making decisions. Thus, the general meeting of members of the housing cooperative, according to Art. 117 of the Housing Code of the Russian Federation, is considered competent if more than 50% of the members of the cooperative are present (simple majority). The decision of the general meeting is considered adopted if a simple majority also votes in favor, but from the number of those present at the meeting, and not from the total number of members of the cooperative. However, the charter may spell out issues on which decisions are made by voting, for example, by more than 3/4 of the members of the housing cooperative present at the meeting. The decisions made are considered binding for all members of the housing cooperative, including those who were not present at the meeting. All decisions of the meeting are documented in minutes.
At the same time, the provisions of the housing cooperative charter that establish increased requirements for the quorum of the general meeting and the adoption of individual decisions are not only not invalid, but, on the contrary, take precedence over the minimum requirements of the Housing Code of the Russian Federation. Let us repeat once again: members of the housing cooperative have the right to enter into agreements among themselves, including by adopting the charter of the housing cooperative, providing for increased requirements for the procedure for holding meetings, voting at them and making decisions on certain issues (Determination of the St. Petersburg City Court dated October 1, 2012 N 33-13754/2012). The establishment of more stringent requirements for the criteria for recognizing the competence of the general meeting of housing cooperatives in comparison with those established by law is an additional guarantee for identifying the actual expression of the will of its members on issues of the activities of the cooperative (Definitions of the St. Petersburg City Court dated November 28, 2012 N 33-16650, dated March 27, 2013 N 33-4343).
For your information. The courts recognize as legitimate the provisions of the charter that contain increased requirements for holding a general meeting and making certain decisions, for example, that:
- the general meeting is recognized as having taken place with the participation of at least 2/3 (this is 66.67%) of the number of members of the housing cooperative (and not a simple majority, as established by Article 117 of the Housing Code of the Russian Federation);
- questions about the size of the share contribution and contributions for the maintenance and operation of the house, exclusion from members of the cooperative and its liquidation are legitimate with the participation in their discussion of 4/5 of the total number of members of the housing cooperative, etc.
If the charter of the housing cooperative contains similar provisions, but, for example, 57% of the total number of members actually attend the general meeting (which is sufficient for a quorum according to the minimum requirements of the Housing Code of the Russian Federation and insufficient according to the requirements of the charter), the meeting will not be valid.
Requirements for officials
It is necessary to keep in mind the special requirements for housing cooperative officials established by Art. 116.1 Housing Code of the Russian Federation. According to it, members of the board of housing cooperatives (including the chairman of the board), a member of the audit commission (auditor) and the chief accountant of the cooperative cannot be citizens:
- having a criminal record for intentional crimes;
- in respect of whom the period during which they are considered subject to administrative punishment in the form of disqualification has not expired;
- who previously held the positions of a manager, his deputy or a chief accountant (and in the absence of a chief accountant on staff - an accountant) of an organization operating in the field of construction, reconstruction, major repairs of capital construction projects, engineering surveys for construction, architectural and construction design, or were individual entrepreneurs operating in the specified areas, if such organizations, individual entrepreneurs were excluded from members of the relevant self-regulatory organizations or declared insolvent (bankrupt) and from the moment of such exclusion or completion of the relevant procedure applied in the insolvency (bankruptcy) case, less than three years.
Housing cooperative board
According to Art. 118 of the Housing Code of the Russian Federation, the board of the housing cooperative is elected from among its members by a general meeting or conference in the number and for the period determined by the charter of the cooperative. Accordingly, it is accountable to the general meeting or conference.
The procedure for carrying out activities by the board of housing cooperatives and the procedure for making decisions by it are established by the charter and internal documents of the cooperative (regulations, regulations or other document).
The board of housing cooperatives manages the current activities of the cooperative, elects from among its members the chairman of the board and exercises other powers that are not within the competence of the general meeting of its members by the charter of the cooperative.
The chairman of the board of housing cooperatives is no longer elected by a general meeting or conference, but by the board itself from among its members for a period determined by the charter of the housing cooperative (Article 119 of the Housing Code of the Russian Federation).
Please note: being a member of a housing cooperative, a citizen, like other members of the cooperative, has the right to be elected, including the chairman of the board. The list of reasons why a citizen cannot be a member of the board of a housing cooperative and its chairman is given in Art. 116.1 of the Housing Code of the Russian Federation, it is not subject to broad interpretation. Thus, additional restrictions for the election of the chairman of the housing cooperative (for example, the mandatory presence of a registered ownership right to residential premises occupied by a citizen on the basis of paid pension savings) may be regarded by the court as illegal and infringing on the rights of individual members of the housing cooperative (Definition of the Moscow City Court dated December 22, 2011). case No. 33-42847).
The functions of the chairman of the board of housing cooperatives are as follows:
- ensuring the execution of decisions of the board of the cooperative;
- performing actions without a power of attorney on behalf of the cooperative, including representing its interests and making transactions;
- exercise of other powers not referred to by the norms of the Housing Code of the Russian Federation or the charter of the housing cooperative to the competence of the general meeting of members of the cooperative (conference) or the board of the cooperative.
The chairman of the board of housing cooperatives, when exercising rights and performing duties, must act in the interests of the cooperative in good faith and reasonably.
Audit committee
To exercise control over the financial and economic activities of the housing cooperative, the general meeting (conference) elects the audit commission of the housing cooperative (auditor) for a period of no more than three years (Article 120 of the Housing Code of the Russian Federation).
The number of members of the audit commission of the housing cooperative is determined by the charter of the cooperative. It should be borne in mind that members of the audit commission cannot simultaneously be members of the board of housing cooperatives, or hold other positions in the management bodies of the cooperative.
From among its members, the audit commission must elect a chairman of the commission. The functions of the audit commission of the housing cooperative (auditor) are standard:
- mandatory scheduled audit of the financial and economic activities of housing cooperatives (at least once a year);
- presentation to the general meeting of members of the housing cooperative (conference) of the conclusion on the cooperative’s budget, annual report and the amount of mandatory payments and contributions;
- report to the general meeting of housing cooperative members (conference) on its activities.
Please pay special attention to the fact that the audit commission of the housing cooperative (auditor) has every right to audit the financial and economic activities of the cooperative at any time and has access to all documentation relating to its activities.
The specific procedure for the work of the audit commission of the housing cooperative (auditor) is determined by the charter and other documents of the cooperative.
Membership in the housing cooperative
By virtue of Art. 121 of the Housing Code of the Russian Federation, a citizen or legal entity wishing to become members of a housing cooperative must submit an application for admission as a member of the housing cooperative to the board of this cooperative. This application must be considered by the board within a month and approved by a decision of the general meeting of members of the housing cooperative or conference. In addition, you need to pay an entrance fee. It is from the moment of payment of the entrance fee after the decision on admission to membership in the housing cooperative is approved by the general meeting or conference that a citizen or legal entity is recognized as a member of the housing cooperative.
The grounds for termination of membership in a housing cooperative are (Article 130 of the Housing Code of the Russian Federation):
- leaving the cooperative;
- exclusion of a member of the cooperative;
- liquidation of a legal entity that is a member of the cooperative;
- liquidation of housing cooperatives;
- death of a citizen who is a member of the housing cooperative.
An application by a member of a housing cooperative for voluntary withdrawal from the cooperative is considered in the manner prescribed by its charter.
A member of a housing cooperative can be expelled from a cooperative on the basis of a decision of a general meeting of members of the housing cooperative (conference) only in the event of gross failure by him, without good reason, to fulfill his duties established by the Housing Code of the Russian Federation or the charter of the housing cooperative.
In the event of the death of a member of a housing cooperative, his heirs have the right to join the cooperative by decision of the general meeting of its members (conference).
A feature of the legal regulation of the activities of housing cooperatives is the great importance of the provisions of the cooperative’s charter, in which its members can establish increased requirements for resolving certain issues compared to the requirements prescribed in the Housing Code of the Russian Federation. Therefore, the development of the charter and its updating must be approached extremely seriously, since it is a kind of guarantee of the valid expression of the will of its members on key issues of the cooperative’s activities.
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Is the chairman of the board of an HOA or housing cooperative an official? Lately this question has come up especially often. And the reason for discussion arises, as a rule, if the law does not give an unambiguous answer, or the rules are unclear. And then residents, authorities, courts, and even the chairmen themselves interpret them according to their own interests...
Take, for example, the Housing Code. In Section V on housing and housing-construction cooperatives in Art. 16.1 sets out the requirements for officials of a housing cooperative. According to the legislator, these are the chairman and members of the board, an accountant. There is no similar article in Section VI on HOAs, but in Art. 149 it is written that the chairman gives instructions to the officials of the partnership. At the same time, it is not said who should be considered one of them, and whether he himself is one. In both cases, the chairman is not appointed by someone from above, but is elected by the board. But he signs financial and legal documents, like the appointed head of any commercial organization. However, the latter bears personal responsibility; he may be fined and even imprisoned. It is now almost impossible to bring the chairman of the board of housing cooperatives or homeowners' associations to personal administrative liability - the courts and prosecutor's offices do not consider him an official. Penalties are usually imposed on a legal entity - a partnership or cooperative. In this case, even if the chairman was personally at fault, all owners will have to pay administrative fines. This has become especially relevant now due to the tightening of state control in the management of apartment buildings.
Indeed, the Housing Code does not define whether the chairman of the HOA board is an official. And this is important, because it is a decisive factor when considering claims in the courts. At the same time, regardless of whether he is an official or not, he should still be subject to administrative liability only on the basis that he is the head of a legal entity.
Tax authorities also contribute to the confusion by recently indicating “chairman” instead of “manager” in HOA registration documents. Formally, if the chairman is not considered a leader, then in this case he does not have the right to sign any document emanating from the organization. At the same time, if you signed, then be responsible for what you signed!
In an HOA, the chairman of the board does not issue orders as a manager. He presides over board meetings and the decisions are recorded in minutes. At the same time, according to paragraph 2 of Art. 149 of the Housing Code, he has the right to sign payment documents and make transactions.
The Plenum of the Supreme Court of the Russian Federation more or less clarified the situation (No. 19 of October 16, 2009 “On judicial practice in cases of abuse of official powers and abuse of official powers”). Paragraph 11 of the resolution states that it is necessary to distinguish between officials who are subject to the Criminal Code and persons performing management functions; these are understood as organizational-legal and administrative-economic functions. The chairman performs these functions. For example, he personally signs accounting and other documentation, and not the board collectively.
The resolution explains the concept of “sole executive body”. According to the Plenum of the Supreme Court, this could be the chairman of the board of directors, the chairman of the board of a housing cooperative. Punishments are applied to them as to officials - from personal income. At the same time, the Supreme Arbitration Court in one of its decisions found it proven that the general director as an official does not have the right to work without salary. However, if we consider the chairman to be an official, then the Housing Code provides for remuneration by decision of the general meeting. That is, a cash payment is possible if the owners agree to it, but is not obligatory.
Judging by the fact that the courts and prosecutor's offices do not recognize the chairmen of the boards as officials, the highest judicial authorities have failed to dot the i's.
The chairman of the board of housing cooperatives and homeowners' associations is a specific position in that it is elected! An official is appointed to a position. The order says: accepted, appointed. But it cannot be in the nature of an order to appoint, for example, Ivanov as chairman of the board. The chairman is elected by the board to perform the duties of a public position, which initially does not include a salary. He is responsible for fulfilling the duties that are prescribed to him by the charter and entrusted by the members of the organization who elected him, for financial resources that pass through his hands and only after his signature end up somewhere. In addition, as the head of a legal entity, he is responsible to the tax inspectorate and all regulatory authorities.
Liliya Pozdnyakova
Regulations on the Chairman of the housing cooperative (HOA)
Duties, rights and responsibilities of the chairman of the board of the partnership
General provisions
The Chairman is an elected person vested with managerial powers.
The Chairman has the right to simultaneously hold the position of House Manager with an appropriate salary approved by the General Meeting.
The chairman of the board may be elected or re-elected directly at the general meeting or from among the members of the board by voting, for the period established by the Charter of the housing cooperative (HOA) (hereinafter referred to as the housing cooperative), but not more than for two years. The Chairman can be re-elected for the next 2 years.
The chairman directs the activities of the board. Has the right to give instructions and orders to all officials of the housing cooperative, which are obligatory for them.
The Chairman ensures the implementation of decisions of the general meeting and the board.
The Chairman acts and signs payment documents on behalf of the housing cooperative and makes transactions that, in accordance with current legislation and the Charter of the partnership, are first subject to mandatory approval by the Board or the General Meeting.
The Chairman develops and submits for approval to the general meeting: internal rules for the work of the Management Board and service personnel of the partnership, as well as regulations on remuneration for their labor.
The Chairman is guided in his work by legislative and regulatory acts, the Housing Cooperative Charter, these instructions, the decision of the general meeting (board) and other documents.
The chairman of the board is a representative of the housing cooperative without a power of attorney in all executive, representative and judicial authorities.
Responsibilities of the Chairman of the Board
The Chairman of the Board is obliged to:
1. Know the legislative acts of the Russian Federation, the constituent entities of the Russian Federation, the Charter of the housing cooperative, these instructions, contracts for maintenance and provision of utilities and other services, as well as other documents related to the activities of the housing cooperative.
2. Organize the activities of the board in accordance with current legislation, the requirements of the Charter of the housing cooperative and the decisions of the general meeting and the board.
3. Perform functions of organizing maintenance and repair of the building, as well as providing utilities and other services to residents.
4. Monitor the provision of utilities and other services of established quality to residents of the house.
5. Provide residents of the house with the recalculation of payments in the prescribed manner in the event of the provision of low-quality utility services or their absence.
6. Encourage service organizations to carry out repair, maintenance and sanitary maintenance of the building, its engineering equipment (devices) and the surrounding area in accordance with the terms of the contracts concluded with them.
7. Take measures to ensure uninterrupted operation of sanitary and engineering equipment, premises, and buildings.
8. Ensure the storage of orders, as well as copies of title documents confirming the ownership rights of residents to residential and non-residential premises.
9. Ensure accounting and storage of business contracts, agreements on the transfer of management rights, joint ownership of the building and shared participation in the costs of its maintenance, repair and management.
10. Issue, within the limits of their powers, payment documents for the services provided, certificates, extracts, acts, copies of personal accounts and other documents to residents of the house.
11. Represent the interests of housing cooperatives in government and other institutions related to the management and operation of the house.
12. Maintain appropriate technical documentation for the house, control the preparation of accounting, statistical and other reporting, and conduct banking transactions.
13. Monitor and manage the activities of the accounting department.
14.Check the correctness of settlements with residents of the house for payment of housing, utilities and other services, as well as their fulfillment of payment obligations.
15.Take timely measures in connection with unauthorized re-equipment and redevelopment by residents of the house of common areas, residential and non-residential premises.
16.Carry out periodic monitoring of the condition of structures, engineering equipment and external improvements of buildings:
16.1.personally supervise the cleaning of households and common areas on a monthly basis;
16.2. monthly, together with the manager or member of the board, check the condition of the roofs of buildings, technical floors and drainage systems;
16.3. monthly, together with the manager or member of the board, check the condition of engineering equipment on technical floors and basements. The chairman of the board is obliged to report all detected malfunctions to service organizations and demand their elimination.17.Make and summarize proposals for the maintenance and preservation of buildings.
18. Receive residents of the building, as well as record and register complaints and applications received from them on issues of building management, paperwork, registration and correctness of payment calculations, consider them and make decisions.
19. Monitor the current or major repairs of the building and, if necessary, involve specialists from third-party organizations.
20. Organize the purchase of materials and equipment necessary for routine repairs and maintenance of buildings.
21. Monitor the maintenance of the accounting journal and the movement of material assets belonging to the partnership.
22. Organize staff training.
23. Supervise the work of the manager and assist him in cases stipulated by safety regulations when performing complex work.
24. Prepare acts for write-off of material assets and submit them for approval to the board.
25.Participate in the work of inventory commissions.
26.Draw up a quarterly work plan and report on its implementation to the board at the end of the quarter.
27. Issue to residents of the house, on the basis of a decision of the interdepartmental commission of the city (district), permits:
27.1. for redevelopment and re-equipment of residential and non-residential premises;
27.2. for the re-equipment of utility networks;
27.3. for the installation, connection and use of electrical household appliances and machines with a power exceeding the technological capabilities of the in-house electrical network, additional sections of heating devices, control and shut-off valves;
27.4. for connection and use of household appliances and equipment, including individual water purification devices that do not have technical passports.28. Issue permits to residents of the house, agreed upon with the service organization, to drain water from heating systems and appliances, as well as to suspend the supply of utilities.
29. By decision of the general meeting and the board, use non-residential premises in the interests of housing cooperatives, without infringing on the rights of residents.
30.At the request of residents, present documents regulating the activities of housing cooperatives.
31. Conduct a board meeting.
32. Be present at the Board on reception days and organize the reception of members of the housing cooperative by members of the Board.
33. Require apartment residents to promptly contact the manager or service organizations if they discover faults inside the apartment equipment (fistulas, rust, etc.) and load-bearing walls (chips, cracks, etc.).
Rights of the Chairman of the Board
The Chairman of the Board has the right:
1. Conclude on behalf of the housing cooperative with the permission of the board:
1.1.economic contracts with resource supplying organizations providing utilities and other services;
1.2. agreements on the transfer of management rights, joint ownership of the building and shared participation in the costs of its maintenance, repair and management with home owners.2. Monitor the intended use by owners of their (residential and non-residential) premises and apply measures that do not contradict the norms of current legislation in cases where these premises are used for other purposes.
3. In cases of an emergency in a premises owned by individuals or legal entities (in the absence of the owner at the time of the accident), threatening damage to the property of other owners and owners of the building, he has the right to enter the premises on behalf of the owner.
4. In accordance with the procedure established by law, compensate the partnership for losses incurred as a result of violation of the homeowners’ statutory obligations provided for in the Agreement on the transfer of rights to manage, jointly own the building and share in the costs of its maintenance, repair and management, as well as other losses caused owner of the property to the partnership.
5. Recruit personnel and then approve them at a board meeting.
6. Manage the activities of staff.
7.Give members of the board individual instructions and demand their implementation.
9.Resign your position early.
The chairman of the board may additionally be granted the following rights by the board:
independently dispose of a certain amount of funds established by a decision of the general meeting of the partnership to pay for office supplies, registration fees, etc.;
personally represent the interests of the partnership in all judicial, state and public and other organizations;
bring claims to court if homeowners fail to fulfill their obligations or violate the law;
draw up and issue documents of established standards to residents of the house;
carry out personnel selection;
solely manage the activities of the staff;
select contractors on a competitive basis.
The Chairman of the Board has no right:
1. Make payments not approved by the board, as well as not provided for in the estimate.
2. Enter the apartments of the residents of the building without their will.
3. Dismiss employees without the decision of the board.
4. Implement decisions of the general meeting and the board if they contradict current legislation.
5. Conclude contracts without a competitive basis, and in the case of leasing property, without 2 independent realtor assessments (or a reasoned assessment of the market on the day of lease) and a decision of the board.
Responsibility of the Chairman of the Board.
The Chairman of the Board is personally responsible for:
for organizing office work in the board;
for organizing accounting and storage of documentation;
for the correctness of the conclusion of contracts;
for failure to make decisions on the maintenance and operation of the building;
for the openness of the Board’s decisions and their accessibility to every Owner.
for the legality and timing of work with applications from owners.
for timely and complete payment of taxes.
The chairman of the board is relieved of his position in the event of failure to fulfill the duties provided for by the Charter, as well as on the grounds set out in the Labor Code of the Russian Federation.
Qualification requirements.
Higher (secondary) education or work experience in a similar position for at least one year. Compulsory training in building management, maintenance and operation.
The procedure for electing the chairman of the board of housing cooperatives
The chairman of the board is an elected person. It is considered selected:
by the general meeting, if the majority of those present at the general meeting voted for it, subject to the presence of a quorum;
The chairman of the board is elected for a term established by the charter, no more than two years in a row.
After two years, the Chairman can be re-elected for 2 years
The Chairman of the Board may be released early in case of unsatisfactory performance:
By decision of the General Meeting.
Board
Removal occurs upon the recommendation of the Audit Commission or members of the initiative group (10% of the number of members of the housing cooperative) by a qualified majority (two-thirds of the Board).
Regulations on the Board of Housing Cooperatives
The board of housing cooperatives has the right:
control and ensure timely payment by members of housing cooperatives of established mandatory payments and contributions;
draw up annual plans, budgets, estimates and reports;
enter into contracts on behalf of housing cooperatives;
represent the interests of housing cooperatives in all judicial, state, public and other organizations;
manage housing cooperatives or enter into management contracts;
hire workers and employees to manage and maintain houses, as well as fire them;
enter into contracts for the maintenance, operation and repair of real estate houses;
maintain lists of housing cooperative members, office work, accounting and reporting;
manage the partnership’s funds in the bank account in accordance with the approved estimate;
convene and organize a general meeting;
provide the general meeting of housing cooperative members for approval with job descriptions of persons charged with managerial functions.
Additionally, by decision of the general meeting, the board may be assigned the following responsibilities:
preparation of amendments and additions to the charter of housing cooperatives;
leasing non-residential premises on a competitive basis, in accordance with the conditions and requirements established by the general meeting of the housing cooperative or by agreement of the owners of the common property of the house;
receiving income from business activities and disposing of them in accordance with the estimate, as well as the directions, conditions and requirements established by the general meeting;
establishing the amount of one-time payments to cover the resulting motivated costs;
disposal of limited financial resources of housing cooperatives, allocated to a separate fund and not included in the annual budget, for emergency and urgent work, etc.
1. Basics of the legal status of housing cooperatives
As already noted, the regulatory framework for the activities of housing cooperatives consists of the following norms:
1) Article 116 of the Civil Code of the Russian Federation
2) Section 5 of the Housing Code of the Russian Federation
In accordance with Article 110 of the Housing Code of the Russian Federation, a housing construction cooperative is recognized as a voluntary association of citizens and (or) legal entities on the basis of membership in order to meet the housing needs of citizens, as well as manage residential and non-residential premises in a cooperative building. More general is Article 116 of the Civil Code, which gives the concept of a consumer cooperative: “a voluntary association of citizens and legal entities on the basis of membership in order to satisfy the material and other needs of the participants, carried out through the pooling of property shares by its members.”
In order to determine the legal status of housing cooperatives, it is necessary to subject the norm of Article 116 of the Civil Code of the Russian Federation to a systematic interpretation. This norm is located in paragraph 5 of Chapter 4 of the Civil Code of the Russian Federation - “Non-profit organizations”. Consequently, the housing cooperative (like other consumer cooperatives) is a non-profit organization, i.e. a legal entity that does not pursue profit as the main goal of its activities and does not distribute the profits received among participants.
In accordance with Article 50 of the Civil Code of the Russian Federation, non-profit organizations can carry out entrepreneurial activities only insofar as it serves the goals for which they were created and corresponds to these goals. However, this rule does not apply to consumer cooperatives, and to housing construction cooperatives in particular. Housing cooperatives have the right to distribute the profits received among their members (clause 5 of Article 116 of the Civil Code of the Russian Federation, which is lex specialis in relation to clause 1 of Article 50 of the Civil Code of the Russian Federation). Another feature of housing cooperatives is that the provisions of the Federal Law “On Non-Profit Organizations” dated January 12, 1996 (clause 3 of Article 1 of the said law) are not applicable to them.
Thus, housing cooperatives occupy an intermediate position between commercial and non-profit organizations. On the one hand, they are non-profit organizations and are subject to the relevant provisions of the Civil Code of the Russian Federation. On the other hand, unlike other non-profit organizations (including homeowners’ associations), they have the right to distribute the profits received among their members (this indicates their commercial nature); in addition, the provisions of the Federal Law “On Non-Profit Organizations” do not apply to housing cooperatives. .
2. Creation of housing construction cooperatives
When creating a housing cooperative, you must be guided by Articles 111 and 112 of the Housing Code of the Russian Federation, as well as the general provisions of the Civil Code of the Russian Federation on legal entities (paragraph 1 of Chapter 4).
In accordance with Article 112 of the Housing Code, a housing cooperative can be created only if the number of its members is at least five people. At the same time, the number of members of the housing cooperative should not exceed the number of residential premises in the cooperative building. The decision to create a housing cooperative is made by the meeting of founders. The Housing Code of the Russian Federation does not establish the procedure for holding such a meeting, but it is stated that future members of the housing cooperative have the right to take part in such a meeting (apparently, as founders of the cooperative). The decision to create a housing cooperative is considered adopted if all persons wishing to join the cooperative have voted for it. The decision to create a cooperative and adopt its charter must be documented in a protocol.
Separately, it is worth highlighting the question of who has the right to join a housing cooperative. Article 111 of the Housing Code of the Russian Federation established that all citizens over 16 years of age, as well as legal entities, have the right to join a housing cooperative. A cooperative can be created either exclusively by citizens, or exclusively by legal entities, or jointly by citizens and legal entities. If a cooperative is created with the assistance of state authorities of the Russian Federation, constituent entities of the Russian Federation or local governments, then citizens recognized as low-income in the prescribed manner and registered as needing improved housing conditions have a preferential right to join such cooperatives.
The only constituent document of a housing cooperative is the charter. The charter is adopted simultaneously with the decision to organize a housing cooperative. From the moment of state registration of the cooperative, the charter is binding not only for those who voted for its adoption, but also for all other members of the housing cooperative, as well as for the cooperative itself. Based on the charter, the housing construction cooperative will act in commercial circulation and participate in relations with state and municipal authorities. When developing a charter, you can be guided by the sample charters of housing cooperatives. Thus, previously there was a Model Charter for Housing Cooperatives, approved by Resolution of the Council of Ministers of the RSFSR dated October 2, 1965 No. 1143. It has now been cancelled, but can serve as a model for developing the cooperative’s own charter. Taking into account the fact that the legal statuses of housing cooperatives and HOAs largely coincide (in particular, both housing cooperatives and HOAs are management organizations in an apartment building), when developing individual provisions (on the procedure for convening and holding a general meeting, counting votes, etc. ) you can take as a basis the sample HOA charter developed by our lawyers. The approximate charter of the HOA (taking into account the new housing code of the Russian Federation) was also approved by Order of the Housing Committee of the Government of St. Petersburg dated March 1, 2005 No. 22-r “On approval of the approximate form of the charter of the homeowners’ association.”
The charter of the housing cooperative must necessarily contain the information listed in Articles 52 and 116 of the Civil Code of the Russian Federation, Article 113 of the Housing Code of the Russian Federation, namely:
Name of the housing construction cooperative (for example, housing cooperative "Garant", housing cooperative "Building Together", housing cooperative "Young Family", etc.; the name must contain)
- its location
- the procedure for managing the activities of the housing cooperative (the management bodies of the housing cooperative, the control bodies of the housing cooperative, the competence of the bodies of the housing cooperative, the procedure for making decisions by the bodies of the housing cooperative must be indicated)
- the subject and goals of the activities of the housing construction cooperative (you must be very careful with this point, since the housing cooperative, as a non-profit organization, has special legal capacity and has the right to carry out only those types of activities that are directly provided for by the charter)
- procedure for joining the housing cooperative
- the procedure for leaving the housing cooperative and issuing a share contribution
- size of the entrance and share payment
- composition and procedure for making entrance and share contributions to the housing cooperative
- liability for violation of obligations to make share contributions
- the procedure for members to cover losses of housing and construction
procedure for reorganization and liquidation of housing cooperatives.
State registration of a housing construction cooperative (as well as other legal entities) is carried out at its location, which is recognized as the location of the permanent executive body (board) of the housing cooperative. State registration is carried out in accordance with the provisions of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” dated 08.08.2001 No. 129-FZ. In particular, for state registration a state fee of 2000 rubles is paid, for state registration the documents listed in Article 12 of this law are provided (application in the prescribed form with a notarized signature of the applicant, decision to create a housing cooperative, documented in a protocol, original or notarized copy charter, document confirming payment of state duty).
State registration is currently carried out by territorial bodies of the Federal Tax Service of the Russian Federation. In particular, in St. Petersburg, state registration is carried out by the Interdistrict Inspectorate of the Federal Tax Service of the Russian Federation No. 15 (Unified Registration Center).
The forms of documents submitted for state registration and the requirements for their completion are approved by Decree of the Government of the Russian Federation of June 19, 2002 No. 439 on the approval of forms and requirements for the execution of documents used for state registration of legal entities...”
Along with the application for registration, an application for registration with the tax authority is also submitted, since currently state registration is carried out simultaneously with the registration of a legal entity with tax authorities.
The registration authority is obliged to make a decision on registration or refusal within 5 working days from the date of submission of documents; and within 5 days from the date of state registration, the tax authority is obliged to issue a certificate of registration. State registration is considered to have taken place at the moment the registration of the housing cooperative is made in the Unified State Register of Legal Entities. From this moment, the housing cooperative is considered created and has the right to carry out its activities.
3. Management of housing cooperative activities
The Housing Code of the Russian Federation has quite rigidly established the structure of housing cooperatives' management bodies. Article 115 of the Housing Code of the Russian Federation is a mandatory norm, that is, it cannot be changed by the charter by the cooperative. In accordance with the above article, the system of governing bodies of a housing construction cooperative includes:
1) General meeting of members of the housing cooperative
2) Housing cooperative board
3) Chairman of the board of housing cooperatives
Let us analyze in more detail the position of each management body of a housing construction cooperative. Let's start with the main, highest governing body of the housing cooperative - the general meeting of members of the cooperative (in cooperatives, the number of members of which exceeds 50, instead of the board or along with it, a conference of the housing cooperative can act - a body whose position is not regulated in any way by the housing code, therefore, its competence should be established by the charter of the housing cooperative). The Housing Code of the Russian Federation does not regulate the procedure for convening a general meeting, therefore the relevant provisions must also be established by the charter of the housing cooperative. You can be guided, for example, by the norms of the Housing Code on the procedure for convening a general meeting of a homeowners’ association (Article 146 of the Housing Code of the Russian Federation).
Article 117 of the Housing Code of the Russian Federation establishes that the general meeting is valid if more than 50% of the members of the housing cooperative are present. Decisions are made by a simple majority of those present, but the charter may indicate issues on which decisions are made by a qualified majority (3/4). The decision adopted at the general meeting is documented in minutes and is binding on all members of the housing construction cooperative.
In accordance with the Housing Code of the Russian Federation, the exclusive competence of the general meeting of the housing cooperative includes the election of members of the board and the audit commission of the cooperative, making decisions on the provision of residential premises to members of the cooperative, admission to membership of the cooperative and exclusion from its membership, as well as some other issues. This list may be expanded by the charter of the housing construction cooperative.
As for the votes belonging to each member of the housing cooperative, there may be several options for counting them. Let's name just two main ones. First, each member of the cooperative has one vote at the general meeting. The second - a member of the housing cooperative has a number of votes proportional to the total area of the premises owned by him (residential and (or) non-residential). The charter of the housing cooperative can establish either one of the two named options, or any other that does not contradict the legislation of the Russian Federation.
As for the frequency of holding general meetings, as well as the initiative to hold extraordinary general meetings, the Housing Code of the Russian Federation again does not regulate these issues in any way. Consequently, these provisions should be reflected in the charter of the housing cooperative. It may be advisable to resort to the rules governing the activities of the HOA or to develop the relevant clauses of the charter yourself. The housing cooperative board is the executive body of the housing cooperative. Members of the board are elected by the general meeting from among the members of the cooperative for the period established by the charter of the housing construction cooperative. The activities of the board, in addition to the charter, can be regulated by local acts of the cooperative - regulations, regulations, etc. The board elects from among its members the chairman of the board for a period determined by the charter of the housing cooperative. The chairman of the board ensures the execution of decisions of the board, enters into transactions on behalf of the cooperative without a power of attorney, and carries out other actions in the interests of the housing cooperative. Clause 3 art. 119 establishes that the chairman is obliged to act in the interests of the housing cooperative reasonably and in good faith. The controlling body in the housing cooperative is the audit commission or the sole auditor, elected by the general meeting of the housing cooperative for a period of no more than 3 years to monitor the financial and economic activities of the housing cooperative. When exercising control, the audit commission is obliged to:
Conduct scheduled audits of the financial and economic activities of the housing construction cooperative at least once a year;
- present to the general meeting a conclusion on the budget of the housing cooperative, the annual report and the amount of mandatory payments and contributions;
- report to
4. Legal status of cooperative members
1) Admission to membership in the housing cooperative and termination of membership in the housing cooperative As noted earlier, initially the only members of the cooperative are its founders (persons who voted for the creation of the cooperative). However, the cooperative has the right to accept other members. The procedure for admitting persons as members of an already created cooperative is established by Article 121 of the Housing Code of the Russian Federation and can be supplemented by the relevant provisions of the charter of the housing cooperative.
A person wishing to join a housing construction cooperative submits a corresponding application to the board of the housing cooperative. The board has 1 month to consider the application. The decision of the board must be approved by the general meeting of the housing cooperative. It is the general meeting that finally decides whether to accept a given person as a member of the housing cooperative or to refuse him admission. If the general meeting approved the decision of the board, then the person becomes a member of the housing cooperative, but not immediately, but from the moment the entrance fee is paid.
Membership in a housing construction cooperative is terminated in the following cases:
- voluntary exit
- exception
- death of a citizen member of the housing cooperative
- liquidation of a legal entity-member of the housing cooperative
- liquidation of the cooperative
This list is exhaustive and cannot be changed by the charter of the housing construction cooperative.
Rights and obligations of members of a housing construction cooperative:
The basic rights of members of the housing cooperative include the right to participate in the general meeting, the right to provide residential premises in a cooperative house, the right to a share, the right to move in temporary residents, the right to rent out residential premises, the right of ownership of the provided residential premises from the moment of full payment of share contribution. The main right of a member of a housing cooperative is the right to provide residential premises in a cooperative house. The decision to provide residential premises to a member of the housing cooperative is made by the general meeting. This decision is the legal basis for a cooperative member to move into residential premises in a cooperative building. Previously (before the new housing code came into force), moving into cooperative premises was carried out according to orders issued by district administrations. The new housing code, in relation to cooperatives, does not operate with the warrant category at all, which is its undoubted advantage, since it is more consistent with market relations. The size of the residential premises provided to a member of the housing cooperative must correspond to the size of the share contribution of this member. Part 3 art. 124 of the Housing Code of the Russian Federation establishes that the basis for ownership, use and disposal of residential premises in a cooperative house is membership in the cooperative. From the moment of full payment of the share contribution, a person acquires ownership of the premises and is fully subject to the rules of Chapter 6 of the Housing Code of the Russian Federation. Until this moment, ownership, use and disposal of residential premises is carried out according to the rules established by the charter of the housing cooperative.
The right to a share is one of the main property rights of a member of a housing cooperative. The Housing Code has not established a procedure for making a share contribution by members of the cooperative. This issue should be resolved in the charter of the housing cooperative.
A share contribution is a property (cash) contribution corresponding to the purchase price of residential premises received by a member of the cooperative. The share contribution can be made at a time or in installments, depending on the provisions of the charter. Until the share contribution is paid in full, the residential premises belong to the housing construction cooperative on the right of ownership.
The share consists of the share contribution and accruals on the share (if they are provided for by the charter). It belongs to a member of the cooperative with all the ensuing consequences - the share can be sold or donated to another person (if the charter of the cooperative allows this), in the event of the death of a member of the cooperative, it is included in the inheritance mass, in the event of the exclusion of a person from the cooperative, the share must be paid on time and under the conditions established by the charter of the cooperative (but no later than two months after exclusion).
In addition to the rights listed above, a member of a cooperative has other rights. In particular, he has the right to divide the residential premises provided to him (one hundred
In particular, he has the right to divide the residential premises provided to him (Article 127 of the RF LC), rent out the residential premises (Article 128 of the RF LC), allow temporary residents to live in the residential premises (Article 126 of the RF LC), etc.
The main duty of a member of a cooperative is to make a share contribution in the manner and within the time limits established by the charter of the housing cooperative. The charter may also establish other obligations of members of the cooperative. In accordance with Part 4 of Article 130 of the Housing Code of the Russian Federation, a member of the housing cooperative in the event of gross failure to fulfill his duties may be expelled from the cooperative by decision of the general meeting. Such a person is subject to eviction from the residential premises provided to him on the basis of Article 133 of the Housing Code of the Russian Federation.
In conclusion of this article, I would like to briefly highlight the issue of reorganization and liquidation of housing construction cooperatives. In accordance with Article 122 of the Housing Code, a housing cooperative can only be reorganized in the form of transformation into a homeowners' partnership. Other methods of reorganization (merger, division and separation) are not applicable to housing cooperatives. Otherwise, when transforming housing cooperatives, one should be guided by the relevant norms of the civil code of the Russian Federation, in particular articles 57-60 of the Civil Code of the Russian Federation. The same applies to the liquidation of housing cooperatives - it is carried out according to the rules established by civil legislation (Articles 61-64 of the Civil Code of the Russian Federation).
ZhSK is short for housing construction cooperative. The chairman may be a person, a member of the housing cooperative, who was chosen from among their members by other members of the same housing cooperative.
In other words, he is chosen by the house board, grants rights and responsibilities that must be specified in the Charter.
The chairman of the board of a housing cooperative must fulfill his duties with dignity, and also act in the interests of the entire cooperative as a whole, among other things, and in the interests of each of its members in particular.
For his actions, he bears full responsibility before the law and every member of the housing cooperative.. Article 119 of the Housing Code regulates general provisions specifically regarding the chairman of the housing cooperative.
Housing Code of the Russian Federation, Article 119. Chairman of the board of a housing cooperative
1. The chairman of the board of a housing cooperative is elected by the board of the housing cooperative from among its members for a period determined by the charter of the housing cooperative.
2. Chairman of the board of a housing cooperative:
1) ensures the implementation of decisions of the board of the cooperative;
2) without a power of attorney, acts on behalf of the cooperative, including representing its interests and making transactions;
3) exercises other powers not assigned by this Code or the charter of the cooperative to the competence of the general meeting of members of the cooperative (conference) or the board of the cooperative.
3. The chairman of the board of a housing cooperative, when exercising rights and performing duties, must act in the interests of the cooperative in good faith and reasonably.
Rights and obligations
The chairman of the housing cooperative has rights that are prescribed in separate chapters in the charter of the housing construction cooperative.
Job description of the chairman of the housing cooperative:
- he must know the Laws of the Russian Federation;
- he must conscientiously organize all activities of the board of the cooperative in full compliance with current legislation;
- regulate issues related to organizing repairs, as well as providing utilities and other services to residents;
- fully control the services provided to residents for quality compliance;
- if services were provided of not very high quality or in the absence of such services, provide residents with a complete recalculation of payments;
- ensure the proper operation of various types of equipment, premises, as well as buildings that belong to this cooperative;
- properly store documents provided by residents that confirm ownership of housing;
- issue the required documents within its competence to residents: acts, documents and certificates for services, and so on;
- represent all the interests of this cooperative in government and other institutions related to the operation or maintenance of the house;
- maintain and control the necessary documentation, accounting statistics, and other reporting;
- conduct banking transactions;
- check the accuracy of payments to residents of the house for payment for various services;
- prevent free unauthorized redevelopment by residents of the house of places intended for public use, residential and non-residential premises;
- periodically monitor the improvement of buildings, the integrity of structures and equipment;
- accept and, if possible, take into account the wishes of the residents of the house regarding the maintenance and improvement of buildings and structures;
- receive citizens, as well as keep records of complaints regarding the organization of management, home improvement, and the technical condition of various objects;
- take measures to eliminate the problems of residents of the house related to its well-being and maintenance;
- control the current and major repairs of buildings and structures of this cooperative;
- draw up a work plan every quarter and report on its implementation to the board at the end of each quarter;
- be present on the established days at the board of the cooperative and organize the reception of members of the housing cooperative by members of the board;
- hold board meetings.
This list of responsibilities is not exhaustive.. When drawing up and adopting the Charter of a housing construction cooperative, other responsibilities of the chairman of the housing cooperative may be included in this list, depending on various situations.
Now let's look at some of the rights that are granted to the chairman of a housing cooperative.
Conventionally, they can be divided into basic and additional.
The basic rights of the chairman of the housing cooperative include:
- control the use by residents of the residential and non-residential premises provided to them, and if a violation of the norms of current legislation is detected, take measures to eliminate them;
- in the event of an emergency in a premises that is owned by individuals or legal entities that threatens damage to the property of other owners, has the right to enter the premises in agreement with the owner;
- conduct personnel selection, present candidates at board meetings;
- manage the activities of staff;
- has the right to vote at meetings of the board of the cooperative in the event of equality of votes among board members;
- vest members of the board with certain powers and require their conscientious execution;
- prematurely vacate the position of chairman of the housing construction cooperative.
Additional rights of the chairman of the cooperative:
In addition to the rights and obligations, the chairman of the housing cooperative has prohibitions and restrictions.
The chairman has no right:
- enter residents' apartments without their desire, especially in their absence;
- arbitrarily dispose of the cooperative's funds for purposes not provided for in the estimate and not agreed upon with the board;
- dismiss personnel without a decision of the board;
- carry out decisions of meetings and the board that contradict the norms of current legislation;
- act against the interests of the residents of the house, the owners of non-residential premises and the entire cooperative as a whole.
We hope that the above information has helped you become more aware of the rights and responsibilities of the chairman of the housing cooperative.
Manager's salary
If an agreement has been concluded with the chairman, then he can be fired in full accordance with subparagraph “d” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, paragraph 10 of Article 81 of the Labor Code.
Housing Code of the Russian Federation, Article 112. Organization of a housing cooperative
6d) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
Labor Code of the Russian Federation, Article 81. Termination of an employment contract at the initiative of the employer
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
Also it is possible to terminate the contract with the chairman of the housing cooperative at his own request.
In this case, a statement of resignation as a member of the housing construction cooperative is required from him, and a work book and a clean paycheck on the last day of work are required from the employer.
Drawing up a complaint
Where can I complain about the chairman of the housing cooperative? In full compliance with the Federal Law “On the procedure for considering appeals from citizens of the Russian Federation” There are authorities where you can turn in this situation:
- prosecutor's office;
- law enforcement agencies;
- self-government bodies;
- labor inspectorate;
- other other bodies whose competence includes housing issues.
Conclusion
The position of the chairman of the housing cooperative is very responsible. Not everyone can cope with it, because this person has many responsibilities and is responsible to the members of the housing cooperative that elected him, as well as to the law.
About the unscrupulous chairman of the housing cooperative in Kurgan, see the following video:
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