If the non-residential premises are located in a homeowners' association. Nuances of interaction between homeowners associations and owners of apartments and non-residential premises

06.08.2012

Obviously, the one who says that one of the most acute and painfully resolved conflicts today is the conflict between the Home Owners Association (hereinafter referred to as the HOA) and the owners of non-residential premises in apartment buildings (hereinafter referred to as the owner) will be right. . The essence of the dispute, in our opinion, comes down to the fact that the owners non-residential premises they do not want to pay for “benefits” that they do not use and do not need. Of course, many HOAs meet the owners halfway, issuing invoices only for a certain volume of services (in addition to generally obligatory), however, as practice shows today, there are cases when the board, the chairman of the HOA use the mechanism of the Partnership not for the purpose of managing the property of the owners, but for the purpose of personal enrichment. This is precisely the reason for the reluctance of the HOA to meet the needs of the owners of non-residential premises. Today, there are no longer isolated cases of involving HOA Chairmen in criminal liability according to Art. 160 of the Criminal Code of the Russian Federation.

This article is more focused on owners of non-residential premises and its purpose is to help owners understand the complex scheme of working with HOAs, a way to protect their interests and rights.

So, the relations of the parties in the situation under consideration are regulated by the following regulations: Civil Code of the Russian Federation, Housing Code of the Russian Federation, Decree of the Government of the Russian Federation of May 6, 2011 N 354 “On the provision utilities owners and users of premises in apartment buildings and residential buildings. (comes into force on 01/01/2012); Decree of the Government of the Russian Federation of August 13, 2006 N 491 “On approval of the rules for maintaining common property in apartment building and rules for changing the amount of payment for the maintenance and repair of residential premises in the case of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building poor quality and (or) with interruptions exceeding the prescribed duration" (sometimes applied by courts by analogy to owners of non-residential premises, although courts often recognize the parties’ references to this act as unfounded); Resolution State Committee RF on construction and housing and communal services dated September 27, 2003 N 170 “On approval of rules and regulations technical operation housing stock."

1. Obligation to pay for utilities.

Regardless of membership in the HOA, the owner of non-residential premises is obliged to pay utility costs and expenses for the maintenance of common property. At the same time, a very important question is what exactly the costs of maintaining common property include and whether the entire volume of services indicated in the HOA invoice are costs of maintaining common property (for more details, see paragraph 3 of this article).

The obligation is due to the following. In accordance with Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property he owns, unless otherwise provided by law or contract.

According to Art. 158 of the Housing Code of the Russian Federation, the owner of premises in an apartment building is obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining common property in an apartment building in proportion to his share in the right common property for this property by paying fees for the maintenance and repair of residential premises.

In addition, by virtue of Art. 39 of the Housing Code of the Russian Federation, owners of premises in an apartment building bear the burden of expenses for maintaining common property in an apartment building. The share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of the premises in such a house, is determined by the share in the right of common ownership of the common property in such a house of the specified owner.

Thus, the owner of non-residential premises in an apartment building is obliged to bear the burden of maintaining the premises, as well as pay the costs of maintaining common property in the apartment building.

2. Registration of relations with HOAs, RSOs (resource supply organizations).

The owner can enter into an agreement with the HOA, stipulating the scope of services provided by the HOA. For example, 2 versions of an agreement with the HOA can be drawn up.

Option 1. It only includes the scope of services provided to the HOA for the maintenance of the common property of the HOA owners. The owner concludes contracts with RSO for the provision of utility services independently.

Option 2. Includes the entire scope of services, including utilities, that is, in this case, the HOA acts as an intermediary between the owners and the RSO (in the general mode).

Concluding an agreement is desirable for the owner of non-residential premises who is not a member of the HOA, since in this case, the owner will not have to pay for all services at the rates determined by the minutes of the general meeting of the HOA. In case of disagreement with the protocol, the owner has the right to appeal the protocol of the general meeting of the HOA. The owner, when concluding an agreement, pays only for the services specified in the agreement.

The mechanism for concluding an agreement with the HOA is as follows.

Option 1. You prepare an agreement and submit it to the HOA with a letter, indicating the deadline for the HOA to sign and return the agreement to you.

Option 2. You take the HOA agreement and, in case of disagreement with certain provisions, prepare a protocol of disagreements and sign the agreement stating the disagreements.

However, the HOA may not agree with the terms you propose, then you can go to court with a demand to force the HOA to conclude an agreement in the version you proposed. During the process, it will be necessary to justify the illegality of certain provisions of the contract or that these provisions infringe on your rights and legitimate interests.

In turn, the HOA is obliged to conclude agreements with the owner, while the conclusion of an agreement between the owner and the HOA is the will of the owner. This is due to the following.

According to Art. 138 of the Housing Code of the Russian Federation, the Homeowners Association is obliged to:

“1) ensure compliance with the requirements of this chapter, the provisions of other federal laws, other regulatory legal acts, as well as the charter of the partnership;

2) manage an apartment building in the manner established by Section VIII of this Code;

16. Proper maintenance of common property, depending on the method of managing an apartment building, is ensured by:

a) owners of premises;

b) a homeowners' association, housing, housing-construction cooperative or other specialized consumer cooperative (when managing an apartment building);

through membership of premises owners in these organizations - in accordance with sections V and VI of the Housing Code Russian Federation;

by conclusion of premises owners who are not members specified organizations, agreements on the maintenance and repair of common property with these organizations - in accordance with paragraph 2 of Article 138 of the Housing Code of the Russian Federation.”

However, there is a small remark here too.

The main document regulating the procedure for providing utility services in the Russian Federation is Decree of the Government of the Russian Federation of May 23, 2006 N 307 “On the procedure for providing utility services to citizens.”

However, the Rules for the Provision of Public Utilities do not apply to owners of non-residential premises (after all, in such premises there are no consumers - citizens who use public services for personal, family, household and other needs not related to the implementation of entrepreneurial activity). Consequently, the HOA is not obliged to conclude an agreement with the owners of non-residential premises on the provision of utility services (Resolution of the Federal Antimonopoly Service of the North-West District dated 04/02/2009 in case No. A56-107/2008, the revision of which was refused by the Ruling of the Supreme Arbitration Court of the Russian Federation dated 09/03/2009 No. VAS-9072/09) . Accordingly, the partnership does not have an obligation to provide utility services to the owners of non-residential premises, who have the right, with the consent of the RSO, to enter into a sub-subscription agreement with the HOA or demand amendments to the agreement between the HOA and the RSO in terms of including the owner of the non-residential premises as a sub-subscriber. Also, as mentioned above, the owner can enter into agreements with RSO independently. The obligation of the HOA to enter into an agreement for the provision of utility services arises if the owner does not have technical feasibility for independent connection to RSO.

Important. A HOA member is obliged to pay all expenses for the maintenance of common property established by the general meeting of HOA participants. An owner who is not a member of the HOA can enter into an agreement without joining the HOA, then the minutes of the general meeting of HOA members do not fully apply to this owner, since the agreement may establish a certain list, volumes and cost of services to be paid by a person who is not member of the HOA.

I would like to draw your attention to the following. There are known cases when, at a general meeting of HOA members, different amounts of mandatory payments are established: for citizens - the same, and for organizations and individual entrepreneurs (owners of non-residential premises) - in an increased amount, and owners of non-residential premises are required to pay HOA bills issued on the basis of differentiated payment rates, until the corresponding decision of the general meeting of HOA members is declared invalid (see, for example, Resolution of the Federal Antimonopoly Service of the Eastern Military District dated April 1, 2008 N A43-4327/2007-28-57). The court will side with the owners and confirm that such a decision is illegal, regardless of whether the owners are members of the HOA (Resolution of the FAS CO dated April 29, 2008 N A35-2290/07-C16). In the future, the owners of non-residential premises have the right to apply to the court with a demand to recover from the HOA unjust enrichment in terms of the amount of payments that are disproportionate to the share in the right of common ownership of common property in an apartment building. The arbitrators will also support the owner (Resolution of the Federal Antimonopoly Service ZSO dated December 13, 2007 N F04-8339/2007 (40703-A70-30)).

Conclusion.

Lack of membership in an HOA does not relieve one from the obligation to pay for utilities (in the absence of independent agreements with the RSO) and the costs of maintaining common property.
Concluding an agreement with the HOA is not necessary, but it is desirable, since in the agreement the owner can determine the number of services provided to him by the HOA; otherwise, the owner may be obligated to pay for the HOA’s services in full (with the exception of certain provisions).

Islamgaleeva Dina Rafaelevna

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The owners' association is elected at a general meeting of residents taking into account the majority of all those present (no less than 50% + one vote). In such a house, every owner of the object can become a member. The HOA draws up contracts with different organizations, and also carries out procedures for providing utility services to apartment owners.

If residents have elected management through the management company ( management company), then according to the contract she is responsible. The HOA guarantees the proper ownership, use and disposal of property in an apartment building, and also provides all services to the owners living in the building.

With persons owning non-residential premises

Reference. In accordance with the legal framework existing in our country, non-residential premises are autonomous real estate objects, confirmed by several legislative documents.

These objects include premises in attics, basements, elevators, roofs of buildings, and therefore the contradictions that sometimes arise when allocating these premises to private ownership are quite understandable. After all from a legal point of view, it makes no difference whether the premises are residential or not, built-in or attached - as long as it is part of the building, and a technical passport is issued.

To coordinate the relationship between the HOA and the owners of non-residential premises who are not members of this organization, the Civil Code regulates the execution of an agreement.

It must indicate certain conditions for the maintenance of this object. The contract must include the following:

Regarding the costs of operating non-residential premises, the interpretation of the law is unambiguous. It states that the HOA assigns payments and contributions for each participant in the partnership and the owner of a non-residential property depending on his share in the right of collective ownership.

Important! No legal grounds differentiate expenses between HOA members and owners of uninhabited premises.

And it doesn’t matter whether the owner of any object uses the elevator, roof or entrance of the house or not - HOA member is required to pay dues.

With apartment owners

Interaction between the HOA and homeowners is built on an ongoing basis after the partnership is formed. The formation of such relations follows from the law and a written agreement.

Thus, the standards of housing legislation are observed. Relations with the participants of the partnership are based on the Charter and rules adopted at the general meeting. Separate contractual agreements are concluded with those who are not members of the HOA.

When drawing up such an agreement, the subject to be signed will be common property, its maintenance and repairs. The following conditions are especially highlighted in the agreement:

The agreement is drawn up in two copies, signed by the chairman of the board of the partnership, the owner of the property, and after that he enters into legal force.

Rights and responsibilities of citizens

In relation to the apartment

Attention! The owner has the right to own, use and dispose of the residential premises belonging to him at his own discretion.

He can provide an apartment for rent to another person for use. And also conclude a free residence agreement with him, but this use should not infringe on the interests of other citizens.

In addition to the rights the owner is obliged to comply necessary conditions indoor living. He needs to maintain the living space in which he lives in proper condition. He must respect the rights and legitimate interests of his neighbors and follow the rules for using apartment premises. In addition, the owner is forced to bear the costs of maintaining common property and premises.

In relation to non-residential premises

Participation in a partnership organized in the house gives the right not only to attend the meeting, but also to take part in different solutions, for example, regarding non-residential premises. It is the members of the HOA who determine the need for a concierge rate, or what cosmetic repairs need to be made in the lobby, corridor or stairwell. And this directly affects market value apartments in this building.

Considering the factor that it is the partnership that disposes of the premises for collective use, tenants, with his support, decide how to use the attic or basement of their home. And the registration of the adjacent territory for the partnership will allow organizing not only car parking, but also a children's playground.

Reference. In addition to the contributions made, government subsidies can also be a source of income for the partnership.

To do this, participants should remember that the municipal authorities, who are the owners of non-privatized apartments in the building, are also obliged to cover the costs of maintaining housing, and in case of refusal, the HOA has the right to forcibly recover part of the fees.

And also in accordance with Art. 153 Civil Code of the Russian Federation the partnership may initiate the construction of additional structures with further extraction of income from them. For example, it is allowed, after obtaining all permits, to attach a store or cafe to a residential building and rent it out: it is quite possible that these payments will cover most of the collective expenses.

The owner of a private enterprise located on the territory of the house, regardless of membership in the partnership, is obliged to bear utility costs and spend money on maintaining common amenities in proper condition. At the same time important point is what is specifically meant by the costs of maintaining common property.

This clarification is due to Art. 210 of the Civil Code of the Russian Federation, which says that the owner of the property bears the burden of maintaining the premises and property, located in it, unless otherwise specified in the HOA agreement.

In addition, according to Art. 39 of the Housing Code of the Russian Federation, owners of uninhabited premises are required to bear the costs of maintaining collective property in an apartment building. They are determined by shared participation in the right of common ownership.

What documents are needed to provide to the partnership?

Important! To join a partnership, those wishing to write an application and confirm their ownership rights by providing a report from the Unified State Register.

Supporting documents include the following agreements:

purchases;
donations;
inheritance;
lifelong maintenance and other similar documents.

It should be borne in mind that all of them, without an extract from Unified register do not give rights to property. The application and supporting documents are provided to the chairman of the HOA board, and then the issue of joining a new member is considered at a meeting and submitted to the general meeting.

Apartment owners who do not wish to join the HOA enter into an agreement with it for the maintenance and repair of common property and pay for these services. All owners of apartment premises are obliged to comply with the requirements of administrative legislation, as well as comply with the Charter and rules of the HOA.

apartment building

shared ownership

legislative framework

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Supreme Court

The changes that housing legislation underwent in 2015 directly affected the activities of HOAs. There have been no changes since then, so the provisions are still relevant.

So it became the responsibility of the owners to hold meetings to make changes to the charter of the partnership. According to the new version of the law, the charter must be registered with the Federal Tax Service, and the chairman must receive an extract from the Unified State Register of Legal Entities.

Pros and cons of this control method

According to Art. 135 Housing Code of the Russian Federation, HOA (Home Owners Association) is non-profit organization, uniting the owners of premises in an apartment building to organize collective management of all real estate, ensuring its use, possession and disposal within the limits determined by legal norms.

Membership in the HOA allows you to participate in general meetings, therefore, gives you the opportunity to directly influence the adoption of all decisions regarding the management of the house and determining the amount of contributions.

The undoubted advantage of the HOA is that it decides how the house will be maintained– does the house need constant security, does it require routine renovation of the lobby, stairwells and corridors, which communications require replacement, etc.

Since the HOA has the right to dispose of all premises public use, residents can jointly decide the purpose of the attic and basement.

Since the HOA is assigned the right to the adjacent territory, residents can choose to arrange a playground or parking lot next to the house.

In general, the creation of an HOA allows for a qualitative improvement in living conditions if the owners approach the organization of house management correctly.

It is important that the source of funds for the HOA, in addition to contributions from residents, public funds may also become.

Since municipal authorities are considered the owners of non-privatized premises, they are obliged to directly participate in the costs necessary to maintain the given house. If this obligation is not fulfilled, the HOA has the right to forcefully collect these payments.

Art. 153 Housing Code of the Russian Federation allows the HOA to initiate the construction of additional premises to common property, which can subsequently be used to generate income. For example, attaching a store or cafe to the house, etc.

Renting such premises will cover a significant part of the costs, which will reduce the amount of contributions.

Another advantage of an HOA is the possibility of refusing services for the maintenance of buildings and organization.

That is residents decide for themselves who to hire to maintain their home and independently agree on .

The only disadvantage of creating an HOA is the risk improper organization management. But this problem easily resolved, since residents can re-elect board members and jointly decide on a management plan.

In which houses can a partnership be created?

Art. 136 of the Housing Code of the Russian Federation states that the owners of premises in one apartment building have the right to create only one HOA.

Can create a common HOA and owners from several apartment buildings, whose engineering support networks and other infrastructure elements border each other.

It is allowed to create an HOA by the owners of several closely located buildings, for example, houses for one owner, country houses with or without personal plots, if there are land plots border or are located on common territory and have common elements infrastructure.

Two or more HOAs can create an association for the purpose of joint property management.

It is possible to create an HOA at the stage of building a house, which is confirmed by Art. 139 Housing Code of the Russian Federation. It is noteworthy that the owners of premises in a house managed by an HOA themselves decide whether to join the partnership or not.

How is the decision to create

In order to create an HOA, it is necessary to hold a meeting of residents, on which will be selected. At least 2/3 of all home owners must be present at the meeting.

The decision to create an HOA is made by a majority vote; according to the changes made, the consent of 2/3 of all premises owners is now required, whereas previously 50% of the votes were sufficient.

The decision is formalized by the minutes of the general meeting of the HOA. The votes of owners are determined by the proportional principle - than larger area residential premises, the more votes the owner has.

Approval of the charter

The procedure for adopting the HOA charter is determined by Art. 45-48 Housing Code of the Russian Federation. Charter must be approved by all owners residential premises of the house.

You can hold a meeting in by correspondence, if before this partnership.

The Charter must reflect all the main aspects of the maintenance and upkeep of the house. It indicates the address of the house, place and date of drawing up the document. The purpose of the HOA’s functioning, the rights and obligations of all participants in the partnership are also stated.

The owners of the premises are called property owners, that is, the HOA is renamed TSN.

Starting from September 1, 2014, all HOAs must register as TSN, while re-registration is not required for existing partnerships.

Changes to the Housing Code of the Russian Federation also affected the charter, in particular:

To amend the current charter, a general meeting is held, at which the charter is amended based on the minutes.

All changes made are certified by a notary and sent for confirmation to tax authorities . After 5 days, the chairman can receive an extract from Rosreestr about the changes.

Registration procedure

HOA registration similar to registration legal entity and does not present any particular difficulties. After registration, the HOA is assigned an individual current account, which subsequently receives the funds deposited by the residents.

For the HOA registration procedure, you need following documents:

application form for registration of a legal entity;
minutes of the general meeting of property owners;
calculation of the share of each owner;
HOA charter.

According to Art. 140 of the Housing Code of the Russian Federation, by decision of the general meeting, an HOA can be transformed into a housing or housing-construction cooperative.

Concluding agreements with residents of the house

The creation of an HOA is possible with the consent of 2/3 of the owners. But other residents use the same providers. Therefore, the partnership enters into agreements with residents who are not its members, individual contracts for the provision of services.

The law does not require that such a document be concluded in writing.

Organization of day-to-day house management work

Current house management work is organized by existing managers - chairman and board, chosen by residents. They may be the same owners or hired from outside.

The board is required to enter into contracts with service providers, collect payments, monitor the current condition of the house, etc.

Some documents, such as HOA agreements with supplying organizations, may not be viewable by HOA members, but they are available to the audit commission.

The procedure for reporting work to residents

Plan for any home maintenance work and estimate annual expenses approved by the general meeting of residents.

If the decision was made through absentee voting, any member of the HOA has the right to disclosure of information about the activities of the partnership and to familiarize itself with the minutes of absentee meetings.

You can also review your HOA's expenses by viewing the association's checking account, which reflects not only all receipts, but also withdrawals.

Dispute resolution procedure

If a HOA member is not satisfied with the organization of house management, he can bring it up for discussion this question at a general meeting of residents. Issues of a financial nature are resolved with the participation of the audit commission.

If the dispute cannot be resolved within the partnership, the tenant can contact the housing inspectorate, which monitors the provision of utility services to citizens.

Also it is possible to contact the tax authorities if there are suspicions of financial fraud.

Video review with changes

Using the example Krasnodar region shows how municipal authorities help representatives of apartment buildings understand the intricacies of organizing the management of common property.