Registration of a housing cooperative: step-by-step instructions for creating and organizing a housing construction cooperative, as well as documents for making a decision Justice

Registration of housing cooperatives: step-by-step instructions

The creation of a housing cooperative begins with a meeting of participants in the shared construction of an apartment building , which is formed by an initiative group of shareholders. So, let's talk about how to create a housing cooperative?

Step-by-step instruction:

At a meeting of the founders who voted for the establishment of the institution, a decision was made on the formation of the company .
The decision will have implications for further progress due to the possession of the votes of shareholders who have a desire to join the enterprise. At the same time, their calculation should not be less than 5 and exceed the number of residential meters in the future house building.
When joining a housing cooperative, a person fills out an application indicating the size of the share ; the decision to accept a shareholder is made at the meeting.
The opportunity to join is available to persons who are already 16 years old and legal entities.

Thus, the decision to organize a housing cooperative is made by both shareholders and founders.

The following details are considered through the meeting:

creation and registration of an institution;
the volume of introductory, membership and legal shares contributed by shareholders;
the management team is elected;
the plan for the final measures for the construction of an apartment building is being studied;
the calculation of shares in the completion of the construction of a high-rise building is carried out;
The charter is approved in accordance with Art. 113 Housing Code of the Russian Federation.

The voting results are recorded in the protocol, indicating all shareholders.

Now, let's take a closer look at the documents that are involved in creating a housing cooperative.

Statutory document

The charter is necessary for registration of a legal entity in the required bodies and is the main constituent document.

The charter contains the following information:

name of the institution;
location address;
subject and purpose of work activity;
method of enrollment as shareholders;
rules for leaving or expulsion from society;
liability for failure to comply with requirements;
the procedure for implementing decisions by management and control bodies;
way to get rid of losses;
method of reorganization and removal of an enterprise.

During the formation of the charter, it must be taken into account that in order to finance construction for amenities, the organization should be registered as non-profit . For this purpose, it is necessary to create a clear formulation of the list of types of its main activities, taking into account the requirements of the law on taxation of corporate profits.

If you want to learn more about the participation agreement, go here. Among other things, we provide you with information about differences from DDU, as well as:

how accounting is done;
right to join;
ownership;
as well as buying an apartment and mortgage.

You can leave the housing cooperative at any time for the sake of housing cooperatives.

Share contributions

This aspect is an integral part of the organization and state registration of a housing cooperative. Contributions are the main source of the organization’s property and are part of its composition ; it also forms the initial capital, the minimum amount.

The property of the organization, like all legal entities. persons are property. Residential premises are not the property of the enterprise only when a share has been paid for it.

also provides for the provision of a share contribution to cover the organization's losses , which is documented at the end of the year. This share must be paid within 3 months after the formation of the annual balance. If one of the members fails to make a share contribution, the responsibility falls on the shoulders of the other participants.

However, additional penalties should be resorted to in extreme cases , when the enterprise has exhausted its entire limit.

Membership Features

Persons who have reached 16 years of age and have submitted an appropriate application can participate in the organization of housing construction cooperatives. He is considered at a general meeting, and then a decision is made on admission to membership in the organization.

The procedure usually takes about a month. After this, the participant must sign the agreement and pay the entry fee. Confirmation of his participation in the housing cooperative is a membership book.

The main responsibility of all members of the cooperative is to make share contributions. The continuation of construction depends on this money. In addition to standard monthly payments, all members of the housing cooperative are required to pay an entrance fee.

Sometimes an organization may require participants to make additional share contributions to cover losses of the cooperative.

But this norm must be spelled out in the organization’s Charter, and members of the cooperative must vote for its inclusion in the constituent documents.

As for leaving the membership of the housing cooperative, for this you need to obtain the consent of the board. The procedure stipulates that he must be paid the entire amount contributed as a share contribution. But the entrance fee and additional expenses are not reimbursed.

In addition to voluntarily leaving the organization, you can lose membership in the following cases:

exclusion of a person by majority vote;
liquidation of housing cooperatives.

Information: all funds contributed upon leaving the housing cooperative are returned to the person within two months, unless otherwise specified in the constituent documents.

The share can be inherited, repurchased or assigned. For example, after the death of a member of an association, his rights may pass to his heirs. And along with the share, the obligation to pay contributions for obtaining housing also passes to them.

Housing cooperative organization scheme

In order for the housing cooperative to acquire legal force and legitimacy, registration is carried out by the state registration authorities in accordance with Art. 51 of the Civil Code of the Russian Federation, Federal Law of July 8, 2001 “On State Registration of Legal Entities and Individual Entrepreneurs.”

List of papers required to open a housing cooperative:

Application for state registration of residential complexes in form 11001, approved by Decree of the Government of the Russian Federation dated January 1, 2001 No. 000.
Application form for state registration of residential complexes
The application is reserved by the signature of an authorized person, which is confirmed by a notary.
Minutes of the general meeting, signed by all participants.
Charter in 2 copies, 1 for the registering authority.
Papers confirming the presence of authorized capital or property and the value in monetary terms.
Receipt for payment of state tax, which corresponds to ten non-taxable minimum citizens.

This procedure in relation to the cooperative is implemented within a 5-day working period . During this time, detailed data is entered into the Unified State Register of Legal Entities, information about the organization is recorded in the register based on the provided folder of documents to the MIFTS.

After the procedure, the company has legal status. persons , and the citizens in the composition are called members of the housing cooperative with Part 5 of Art. 112 Housing Code of the Russian Federation.

The documents required for registration must be filled out in the state language , and the registration card must be in printed letters. All signatures are notarized.

Next steps to register a housing cooperative:

After receiving registration documents, the enterprise is included in the Unified Register of Enterprises and Organizations in the statistical authorities.
Perform the production of seals and stamps.
Registration of housing cooperatives in the Pension Fund.
In the Compulsory Social Insurance Fund.

To properly prepare the papers, you need the following information::

full and abbreviated name of the legal entity;
information about the management who has the right to perform work without a power of attorney, acting on behalf of the institution - General Director, manager and other senior staff;
if there are restrictions, the duration of the powers of these persons;
types of activities that this legal entity is obliged to carry out;
address, location, contact details;
information about persons on the board.

The concept of state registration

According to Russian legislation, all legal entities must be registered. A legal entity is an organization whose activities may be aimed at generating profit and dividing it between participants or achieving a specific goal. In other words, an organization can be commercial or non-profit. Non-profit organizations most often include various charitable, educational, cultural foundations, as well as cooperatives.

State registration of legal entities should be understood as entering data on the creation of an organization into the state register.

In addition, the register also contains information about the reorganization and liquidation of a legal entity, and other information required by law. There is a certain registration procedure, which is the same for all business entities.

It follows that only the state has such powers, therefore the activities of private registration bodies are prohibited. After completing the procedure, the legal entity becomes a subject of law. He has a certain legal capacity, that is, rights and obligations in relation to activities to achieve the goal outlined in the constituent documents.

State registration performs a number of the following functions:

state control over the economic activities of the entity;
implementation of taxation;
maintaining statistical records;
providing information about legal entities to various government bodies.

As for the purposes of state registration of citizens' associations, they are the provision and protection of the rights, freedoms and interests of both citizens and the state in the economic sphere. Registration authorities are called upon to ensure that legal entities whose activities are contrary to the law are not allowed into civil circulation. In addition, they are obliged to prevent monopolization of the market.

Currently, state registration has an application form, that is, it provides for limited government intervention in corporate relations.

The creation of a legal entity does not require permission from the authorities, and the state fulfills its role only by checking the documents provided for the procedure.

There is another form of state registration - notification. To do this, the founders of a legal entity only need to notify the relevant authorities about the creation of the organization, and there is no need for personal presence. But this form of registration is not used in Russia, since in practice it does not allow control over the process of creation or liquidation of legal entities, and also contradicts the principles of market relations.

Protocol on the creation of a housing cooperative

The minutes of the first constituent meeting is another important paper required during legal registration. faces. There is a certain procedure for its maintenance, which is clearly visible in copies of this protocol.

Since 2014, this sample has undergone some changes in the design of the meeting of legal entities and the very content of the first constituent meeting has changed. All necessary papers with the Protocol and application in the required form are provided to the registration structures.

The first protocol contains information about the creation of the enterprise, name, authorized capital, composition of the founders and their shares in the capital. The first constituent protocol reserves the fact of choosing a leader.

The minutes contain information about the agenda that is important for the formalization of the organization.

All founders now become applicants , which means that everyone signs an application in form P11001 at the notary.

And the document indicates one founder who is responsible for government registration and payment of fees.

All shareholders are required to be present when submitting a package of documents to the Federal Tax Service or give permission to the representative certified by a notary to submit and receive documents.

Position of members

When a citizen is accepted as a co-founder, he is provided with premises commensurate with the shares contributed . This decision becomes the basis for moving a tenant into the house. Only on the basis of membership in the cooperative is it possible to own, use and dispose of the allocated territory.

A member or a certain number of them has the right to a share. The size of the share contribution is fixed by the charter .

It is possible to purchase documents for ownership of housing only after making a full deposit of the share.

The rights of Ch. 6 LCD “Common property of premises owners in an apartment building. General meeting of such owners (129 residential complexes).

If a member of the cooperative has not paid the full contribution and wants to leave, he has the right to do so with the consent of the shareholder and the board of the cooperative. If the departure is temporary, these residential meters are rented out. Empty premises are also available for rent until the owners arrive.

The grounds for termination of participation in the organization of housing construction and housing cooperatives are enshrined in Art. 130 LCD:

voluntary withdrawal of the shareholder;
expulsion of a participant from the cooperative by a majority;
liquidation of a legal entity that is a shareholder;
elimination of the housing construction cooperative;
the death of a person who is a co-founder of a housing institution. In this case, relatives have the right of priority to join the society and dispose of the appropriate living space.

Sample application for voluntary withdrawal from a housing cooperative

If a shareholder who has not paid the full contribution is excluded from the cooperative, the share belonging to him is returned within 2 months in accordance with Art. 132 LCD. In the event of demolition of a house owned by an institution, Articles 32 and 86 apply to members of the cooperative.

Housing cooperatives and public housing cooperatives: about the housing construction type of corporate curtain

This autumn has been rich in cases of the Supreme Court of the Russian Federation getting involved in the problem of determining the place of housing construction cooperatives in the system of relations regarding shared construction. Moreover, this connection took place in the person of two boards at once - administrative and civil.

On September 2, the Administrative Board adopted determination No. 44-KA19-6 on one of the disputes related to the division of the problematic inheritance left to the shareholders of the Perm housing cooperative Triumph, which was sensational in local circles. Quarter 2".

The shareholder challenged the decision of the regional government to refuse to include him in the register of affected shareholders on the grounds that a member of the housing cooperative is not a shareholder under the law “On participation in shared construction...”. SKAD of the Supreme Court did not support this point of view, following the Reviews of judicial practice dated December 4, 2013 and July 19, 2017, indicating that the share accumulation agreement is not in form, but in essence, an agreement for participation in shared construction, and therefore the shareholder of the cooperative is equal to a shareholder and enjoys the rights that are established for shareholders by the law on participation in shared construction. Including the right to be included in the register of affected shareholders.

A few days ago, the administrator of this resource, Gulnara Ismagilova, kindly drew my attention to the fact that the Judicial Collegium for Civil Cases entered the fight for the rights of shareholders of housing cooperatives in connection with their participation in shared construction, revealing to the world a ruling dated October 15 of this year. No. 5-КГ19-186.

In this case, everything was much more gratifying for the shareholder. He received housing, but its actual area turned out to be 5 square meters less than the designed area. Shortage! In anticipation of this shortfall, the cooperative refused to voluntarily return the money to the shareholder.

The shareholder brought his claim against the cooperative, which is completely logical, since it was with him that he entered into a share accumulation agreement. But neither the court of first instance nor the Moscow city appeal supported this logic[1].

Their position was as follows.

A review of judicial practice on disputes in the field of participation in shared-equity construction of housing dated December 4, 2013 indicates that relations between shareholders and housing cooperatives are not regulated by the provisions of the law “On participation in shared-equity construction...”. This means that the shareholder in relation to the cooperative is not a shareholder, and the cooperative in relation to the shareholder is not a developer according to the norms of this law, although he is a developer in the broad sense established by the Town Planning Code of the Russian Federation.

This means that if the law “On participation in shared construction...” says that money for housing construction can be raised by housing construction cooperatives, but the provisions of this law do not apply to relations between shareholders and housing cooperatives, then the shareholder’s demand, based on the provisions of the law, “ About participation in shared construction..." must be presented to the person for whom these norms are mandatory, i.e. a real developer. After all, it was he, and not the housing cooperative, who built the house with an apartment 5 square meters less than he promised, and must bear responsibility for this in accordance with the said law.

The accumulating agreement presented in the case materials is completely “bare” in the sense that it actually contains only the condition “you give me money, I give you an apartment that will be built by developer N.” There are no provisions from the field of corporate law, as befits any decent housing cooperative, in the agreement. In general, in terms of its content, this is not an agreement on joining a housing cooperative, but a contract for the purchase and sale of a future apartment, for the sake of order, called a share accumulation agreement.

The court especially noted the fact that the parties to the accumulation agreement in no way connected its conclusion with the establishment of any corporate relations between themselves, and for complete clarity of its approach indicated that in the case under consideration the housing cooperative is nothing more than a technical payer or transferee. agent between the shareholder and the developer according to the scheme “transferred the money - transferred the apartment.”

Thus, the housing cooperative is an improper defendant, and the shareholder must turn his claim regarding the defects of the apartment against the real developer, the court of first instance decided and was confirmed by the Moscow city appeal. The absence of any contractual ties between the shareholder and the developer did not bother the courts at all.

Beyond the words of judicial acts, there remained a latent thought: you constantly demand that the courts look into the essence of relations, and not approach them formally? Please. Everything is as you want. In this case, the housing cooperative is a simple shell, a cooperative SPV through which the developer collected money for construction. By signing a share accumulation agreement, in which not a single word was mentioned on any corporate topic, the shareholder demonstrated that he was not at all interested in participating in the housing cooperative. He had no will to participate in this. He only needed an apartment of the size he paid for. Who should be responsible for the non-compliance of this apartment with the design documentation, and to whom should the requirement based on the norms of the law “On participation in shared-equity construction...” be addressed? Obviously, not to the cooperative, which itself did not build anything. Here is the breakthrough of the corporate curtain called housing cooperatives. Just like in Europe and America.

The cassation appeal of the shareholder was accepted for consideration by the SKGD of the Supreme Court.

She indicated that the housing cooperative is a consumer corporation, relations in which are regulated by the norms of the Housing Code of the Russian Federation, and not by the law “On participation in shared construction...”, which directly follows from the same Review of Judicial Practice dated December 4, 2013.

The shareholder is not a participant in shared construction and is not in any relationship with the developer, and therefore cannot have any claims against the developer. The accumulation agreement, taking into account which the lower courts made opposite conclusions, was not found by the Judicial Panel at all in the case materials (?!).

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Thus, we have two rulings of the Supreme Court of the Russian Federation adopted with a difference of one month on the same subject and with references to the same rules of law and conclusions previously made in the Review of Judicial Practice.

In one case, the impossibility of extending the provisions of the law “On Participation in Shared Construction...” to the relationship between the housing cooperative and the shareholder did not prevent the Supreme Court from recognizing the shareholder as a shareholder in the sense of this law and obliging the public body to include the shareholder in the register of affected shareholders.

At the same time, the Supreme Court suggested that lower courts, when considering similar disputes, move away from formalism and take a closer look at the content of the relations that have arisen between the housing cooperative and the shareholder to collect money for housing construction in order to see in them the relations regulated by the law “On participation in shared construction...” .

In another case, the Supreme Court took a strictly opposite position, pointing out the inadmissibility of such a free approach to the law on participation in shared construction to the detriment of the corporate norms of the Housing Code.

But in this last case, the situation was greatly complicated by the fact that the shareholder was suing the cooperative itself under an agreement, in the execution of which the actual developer did not take any part, and this most important circumstance gives reason to say that there is no contradiction between both definitions of the Supreme Court in fact no matter.

When a shareholder of a cooperative defends his rights to third parties, but not to the housing cooperative and certainly not to the developer, these rights can be determined from the position of the rights of shareholders under agreements for participation in shared construction. On what basis? The fact is that the shareholder, who is not a “real shareholder,” nevertheless participates in relations regarding raising funds for housing construction, as the law directly states.

The Housing Code regulates internal corporate relations in housing cooperatives, but says nothing about regulating relations between shareholders as subjects of raising funds to create housing in the future on a “share” basis and third parties, including public bodies. This means, and this is quite logical, the regulation of such relations should, by virtue of the analogy of the law, be carried out in accordance with the norms of the law “On participation in shared construction...”, in the text of which housing construction cooperatives, by the way, are mentioned repeatedly.

From this point of view, the Administrative Collegium of the Supreme Court of the Russian Federation is right in its assertion that this law is not a law only and exclusively about agreements for participation in shared construction, but is, in a broad sense, a law on raising funds from citizens to finance the construction of housing with the subsequent transfer of apartments to these citizens . Regardless of how such citizens are called - participants in shared construction (shareholders) or shareholders of housing cooperatives.

The situation looks completely different when it comes to a dispute between a shareholder and the cooperative itself.

Bearing in mind the existence of an agreement between the housing cooperative and the shareholder, whatever you call it, for accumulating shares or joining a cooperative, the housing cooperative, even being a purely paper layer between the shareholder and the developer, cannot oppose the shareholder’s demand with the objection that the shareholder must address all his claims to the developer , since these requirements are based on the norms of the law “On participation in shared construction...”, and the cooperative is not a developer according to these norms.

Why? Because the shareholder’s requirements, even regarding the quality of the apartment transferred to him by the cooperative or its footage, are in fact not at all based on the norms of this law, but are only similar to the requirements that shareholders can declare to developers by virtue of the law and agreements for participation in shared construction.

The presence of such an analogy, no matter how complete, does not transform a share accumulation agreement into an agreement for participation in shared construction, and unexpectedly does not make the developer responsible to a shareholder of the cooperative that is completely unknown to him.

Therefore, the Judicial Collegium for Civil Cases is also absolutely right in its determination.

True, there is something that is very confusing in all this apparently correct and truly law-based logic. Namely, the figure of the cooperative as a ploy for collecting money from citizens, the presence of a real beneficiary of this process in the person of the developer and the comrades standing behind him, and the fact that the shareholder makes his demand not at all in order to simply make a scandal in court, but in order to achieve real effect, expressed in the return of the money paid by him.

Taking into account such reservations, the position implied in the decision of the court of first instance in the case of shortage of square footage certainly deserves attention, according to which a claim for defects in housing, filed by a shareholder against a cooperative, the existence of which has no other purpose or meaning other than the transfer of funds from citizens to the developer, can break through the corporate curtain in the form of such a housing cooperative in order to reach the real violator of the promise to build quality housing within the stipulated period. Moreover, such a violator, who, unlike a laying cooperative, has a direct and immediate interest in receiving money from shareholders, including keeping a significant part of it as profit.

After all, the demand of a dissatisfied shareholder to a shell cooperative housing cooperative, devoid of any hint of real corporate existence and active activity, is actually turned against other shareholders, since there are no other funds other than their contributions in the current account of the cooperative, against which a writ of execution will be issued, and there will not be Maybe.

Gradually, a situation arises of the property liability of some shareholders of the housing cooperative to other shareholders for the outrages of the developer, who is the obvious beneficiary of the entire scheme for raising funds from citizens through the housing cooperative system.

All risks of the developer’s failure to perform are transferred not to the cooperative, but to its shareholders.

Moreover, the presence of a housing construction project also means the creation on the developer’s side of intangible benefits in the form of obvious organizational amenities.

How much easier is the life of a developer when he is legally opposed not by a couple of hundred very real embittered citizens who gave their money, often credit, for the promised housing, but by some pocket housing cooperative.

It is quite likely that it was precisely this clearly unjust “corporate-cooperative” curtain that the Kuntsevsky District Court wanted to pierce with its decision, and in this sense, it was its decision, and not the decision of the Supreme Court, that could create, pardon the pun, breakthrough judicial practice in housing construction with participation of housing cooperatives existing only on paper.

It's not meant to be.

The Civil Division of the Supreme Court did not at all touch upon the topic of the acquisition by the cheating developer of all the benefits from the implementation of such a scheme for attracting funds from citizens. That is, she showed that same formalism, even, rather, extreme legalism and literalism, which she calls on lower courts to get rid of.

“The situation will be saved by the cooperative’s recourse claim against the developer,” someone might say. But to file such a claim, you must at least have the desire to file it. Will a pocket housing cooperative show such a desire, will it selflessly and fiercely fight the developer that controls it? Not sure.

In addition, it is far from a fact that in the described situation the cooperative generally has the right to file a recourse claim against the developer, rather than an independent one. Our Civil Code does not know the general rule on recourse, but considers recourse obligations limited to an exhaustive list of specific cases of their occurrence according to the principle of numerus clausus. In addition, formally, the responsibility of the housing cooperative to the shareholder is not derived from the responsibility of the developer to the cooperative. But that's a completely different story.

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Recognition of a share accumulation agreement as an agreement of participation in shared construction, i.e. agreement for the purchase and sale of future property, breaks the maxim established in the Housing Code and dating back to the Law of the USSR “On Property” that the right of ownership of residential premises arises from a member of the cooperative who has paid the share contribution in full, by force of law, and not by force transfer of ownership of housing from the cooperative to its participant. To acquire the right of ownership of housing, a cooperative member is not required to perform any actions to transfer housing, and a cooperative member is not required to accept housing. No agreement is needed, neither a quasi-DDU, nor a purchase and sale agreement for future real estate.

Moreover, the agreement of share accumulation or the agreement of participation in a housing-construction cooperative is completely unnecessary and devoid of any legal and practical meaning, since neither the admission of a new person as a member of the cooperative, nor the payment of an entrance or share fee by him require as their basis the conclusion of any agreement with the cooperative, and the conditions for such acceptance or such payment, regardless of the conclusion of any agreement, must be determined by the charter, and equally for all participants of the cooperative.

The only thing that can justify the conclusion of a pension accumulation agreement is the need to demonstrate it to tax officials, who sincerely believe that the basis for the payment must necessarily be either an agreement, or a judicial act, or a decision of a public body. It is impossible to explain to the tax inspector the miracle that it is possible to pay contributions to a cooperative even in the absence of any agreement with the cooperative. He will call an ambulance for psychiatric help. Both to yourself and to your interlocutor.

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[1] Decision of the Kuntsevsky District Court of Moscow dated December 12, 2018 in case No. 2-5634/18.

Appeal ruling of the Moscow City Court in case No. 33-15498/2019.