Transfer of a house from the developer to a management company, management agreement, choice of management company

An apartment in a new building is an opportunity to live in a new place with those who share common views on life. After putting the house into operation, the long-awaited moment of handing over the keys occurs. The floors are carefully leveled, the wiring is checked under a magnifying glass, but happy new residents usually forget about the operating organization. Who chooses a management company in a new building? Who, when and how will undertake to maintain the building? How does a developer transfer a house to a management company? The publication reveals all the main aspects of this process.

Legal basis

All actions of a construction company regarding the maintenance of a commissioned house are regulated by law. The procedure for transferring apartment buildings, choosing a management company in a new building, paying utility bills and other nuances are based on a number of regulations and articles of the Housing Code of the Russian Federation:

Article 153 and 161 of the RF Housing Code. The provision of housing and communal services at home is mandatory. Regulates the obligation to conclude a temporary management agreement for an apartment building between the developer and the management company
Government Decree No. 75 dated 02/06/2006 reflects the procedure for implementing the competition for selecting an MA.
Decree of the Government of the Russian Federation No. 124 of February 14, 2012 obliges the management company to sign a contract with resource supply organizations (RSO) upon commissioning of the house
After completing the transfer deed for the apartment, the obligation to pay passes to the shareholders, which is enshrined in Article 155 and Article 153 of the Housing Code of the Russian Federation

Management agreement with the developer before the competition

Subject of management of MKD. Since it is impossible to hold a full meeting of owners after putting the house into operation, the legislation defines the procedure. Part 14 of Article 161 of the Housing Code of the Russian Federation states that the developer must conclude a management agreement for an apartment building 5 days after its commissioning. In this case, the management company is the contractor of the developer, and the developer is the customer.

Validity. The conclusion of a management agreement with the developer is carried out for a period of 3 months. If the parties do not write a statement to terminate it, then, in accordance with Part 6 of Article 162 of the RF Housing Code, it will be extended for another 3 months under similar conditions.

Payment for services. The management company has the right to issue utility bills in the name of the developer until the premises become the property of the residents. Shareholders must pay for utilities themselves, depending on the terms of the contract, for example, after putting the house into operation.

Maintenance of a residential building after commissioning

After the start of operation of the building, it is necessary to introduce temporary management of the apartment building until the competition is held. There are two ways to do this.

The first option: the construction organization itself is engaged in the operation of the apartment building. In this case, no contract is concluded with the operating organization, and shareholders transfer payments for maintenance and utilities to the account of the construction organization. The date of execution of the acceptance certificate will be the start date of accrual for housing and communal services. Contracts for the supply of heat, electricity, and water are concluded by the developer directly with RSO.

The second management option: engaging a temporary service organization to provide housing and communal services. The developer himself has the right to choose the first management company in a new building, because the law requires the prompt conclusion of a contract for maintenance and repair within a period of time no later than five days from the start of operation of the house. The validity period of such an agreement is 3 months with the right to extend for a similar period. Supply contracts with RSO are signed on its behalf by a temporary management company, which issues invoices and collects funds for services rendered from new residents and the developer (for unsold or untransferred apartments). Residents begin to receive accruals after issuing an apartment acceptance document.

During the period of 5 days after the commissioning of the house, the buyers of the apartments have not yet become owners, the ownership right has not been registered, which means that in the specified short period of time, shareholders cannot vote.

Therefore, the decision is made only by the developer. The opinions of citizens (shareholders) are not taken into account. After registration of ownership, residents also acquire the right to vote, can convene a general meeting of residents, and choose the operating organization independently. The developer participates in the subsequent voting when there are unsold apartments in the building with a registered title to the construction company.

Transfer of a house from the developer to a management company

The Housing Code does not allow leaving a house without maintenance and thereby jeopardizing the safety of living in it. Therefore, from the first days of commissioning, the house is under the control of a temporary operating organization hired by the developer or managed by the construction organization itself. The permanent operating organization can be selected in any of two ways:

The shareholder signs the voting ballot and the management agreement with the management company at the time of acceptance of the apartment
The management company is selected based on an open competition

In the first case, the developer usually holds an absentee vote through a general meeting of owners to conclude a management agreement for the apartment building with a controlled organization. Large construction companies have a controlled operating company in their structure. This is done in order to prevent competitors from entering their territory. To vote in favor of a controlled organization, ballots are used, which are signed by citizens in parallel with the execution of the act of acceptance and transfer of apartments. In addition to the newsletter, a contract for the operation of the building is also endorsed. If the construction organization has unsold apartments with registered ownership, the developer also votes at the general meeting of owners in favor of the operating organization. This is beneficial for residents because the level of service provided by the management company under its control is much higher than that brought in from outside, and issues related to the developer are also resolved much faster.

This method of determining the MA has a limitation - it is necessary to organize a vote and meet the deadline no more than 60 days from the moment the apartment building is put into operation, otherwise a municipal competition will be held.

The second method, as has already become clear, is to determine the operating organization through an open tender. It is carried out by a local government body (mayor’s office or district administration)

Procedure for action of self-government bodies:

Within 20 days from the date of commencement of operation of the MKD, an open competition is announced to select the management company
40 calendar days are allotted for the implementation of the competition
Within 10 days from the date of completion of the competition, shareholders are informed about the results of the selection of a management company for the new building.

According to clause 2 of PP No. 75, the winner of the open competition is the organization that offered to carry out the proposed amount of work at the lowest cost.

Procedure for acceptance and transfer of an apartment building: legislation and practice

One of the priority activities of an organization engaged in residential real estate management is the attraction of new apartment buildings (hereinafter referred to as MKD). Changing the management company (hereinafter referred to as the management company) is also becoming increasingly important for the owners of the premises of the house, who have actively begun to participate in issues of its management and operation. However, despite the importance of this topic, and the existence in practice of problems of acceptance and transfer of houses, the legislation does not regulate the procedure for acceptance and transfer of apartment buildings when changing the management company or management method. The Housing Code and explanatory letters from the Ministry of Regional Development of the Russian Federation come down only to the issue of transferring technical documentation.

In a number of regions of the Russian Federation there are by-laws. For example, by order of the Moscow Housing and Public Utilities Department dated September 29, 2006. N 05-14-316/6 approved the procedure for transferring management of apartment buildings when changing organizations managing an apartment building, regardless of their organizational and legal forms. True, this document is partially outdated, and some of its provisions are still not implemented, because There are no penalties for management companies and authorities in this matter. But, despite the existing difficulties, it is possible to ensure the acceptance and transfer of a residential building within a reasonable time without going to court. Let us consider the main stages of this procedure using the example of Moscow practice.

I. Situations in which MCD reception and transmission occurs.

Acceptance and transfer of MKD can occur on the basis of a management agreement between the developer company and the management company , which is concluded no later than 5 days from the date of receipt of permission to commission the MKD (clause 14 of Article 161 of the Housing Code of the Russian Federation). Following the logic of clause 4 of Art. 161 of the Housing Code of the Russian Federation, this agreement is concluded for 1 year, after which the local government body must hold an open competition to select a management company if by this time the owners of the premises in the apartment building have not chosen and implemented a management method. Due to the fact that the developer enters into an agreement with a self-selected and, as a rule, affiliated management company, no serious problems arise in this situation. Even before the moment of commissioning, the management company can receive the necessary package of design and technical documentation and take part in the work of the state commission for putting the house into operation. In the future, the management company’s task is to organize work with the owners of the premises in order to ensure their choice at the general meeting by the end of the contract with the developer.
Acceptance and transfer of apartment buildings can occur based on the results of an open competition of a local government body (municipality or executive authorities). Thus, if the share of state ownership in an apartment building is more than 50%, a management agreement is concluded with an organization selected based on the results of an open competition (clause 2 of Article 163 of the Housing Code of the Russian Federation). Also, based on the results of an open competition, a management agreement is concluded for those apartment buildings in which, a year before the date of the competition, the owners of the premises in the apartment building did not choose and implement a management method, or for those apartment buildings for which the management agreement concluded earlier as a result of the competition has expired (p 4, Article 161 of the Housing Code of the Russian Federation). Decree of the Government of the Russian Federation of February 6, 2006 No. 75 regulates the procedure for holding an open competition by a local government body to select a management organization to manage apartment buildings.

Documents provided by the management company for participation in the competition:

Application for participation in the competition;
Set of constituent documents;
Copies of licenses and certificates;
A copy of the balance sheet for the past six months;
Letters of recommendation and gratitude (if available);
Draft management agreement with the annual budget of the apartment building.
Proposals for streamlining the removal of solid waste and waste materials
Number of employees (with a breakdown of engineers, technical personnel);
Availability and quantity of cleaning equipment, etc.

A management company that received an apartment building based on the results of an open competition does not face obstacles from the former management company, local authorities or a group of owners of apartment building premises in matters of obtaining documentation, transferring payments from owners, and renewing contracts with resource supply and contractor organizations. These and other problems arise when a former management company is involved in the procedure for accepting and transferring an apartment building.

Acceptance and transfer of apartment buildings by decision of the general meeting of owners, the general meeting of members of the HOA, residential complex or the decision of the meeting of the board of the HOA, residential complex.

Regardless of whose initiative the issue of changing the management company is raised - by the owners themselves, the board of the HOA, housing complex, representatives of the new management company or employees of the state government, activists for changing the management company are faced with opposition from the management company. The scale of the struggle directly depends on the level of profitability and attractiveness of the “captured” object. If the house is old, the residents have conflicts and the house brings more problems than profit, then the management company will passively participate in the process, rather than resisting, but simply slowing down the transition of the apartment building, trying to give the apartment house on its own terms: covering its problems and losses. If the management company is interested in the apartment building, it makes a profit on it, incl. using common property, and at the same time has the support of local authorities, then the transition to a new management company may drag on for years and not lead to results. For example, residents of house No. 4 on Anokhin Street in Moscow, who received a management company from the developer, despite the fact that by an overwhelming majority of votes at the general meeting they chose another management company and received a court decision confirming its legitimacy, were unable to change the management company due to for the opposition of its leadership and employees, including the security forces.

In practice, it is more realistic to transfer an apartment building to another management company in the case of organizing a homeowners association. In such a situation, the owners have a legal entity that has the right to implement and defend the decisions and interests of the majority, and the MKD does not transfer directly to the new management company, but leaves the management company for “free floating.” After all, the HOA has the right to both independently manage the apartment building and to enter into a management agreement with a specialized management company from the moment of state registration. If there is an HOA, the chances of changing the management company are 99%; if there is no HOA, the chances are 50/50. There are examples of apartment complexes without an HOA in which one group of owners held a general meeting to elect a new management company, and then another group, with the support of the current management company, immediately held a new meeting to re-elect the old management company. And so on, several meetings over the course of several years, during which the conflict grew and good neighborly relations were lost.

Thus, it is more effective to change the management company through the creation of an HOA. You can put to a vote on the agenda of one general meeting: the creation of an HOA and the conclusion of a management agreement on city rates between the HOA and the new management company. Despite the fact that the board of the Partnership has the right, in accordance with clause 4 of Art. 148 of the Housing Code of the Russian Federation to independently decide on concluding a management agreement with the management company, it is more expedient to put this issue to a vote of the general meeting of HOA members or the general meeting of owners. Then questions about the legitimacy of the choice and activities of the new management company will not arise.

II. Stages of acceptance and transfer of MKD and accompanying documents.

Minutes of the meeting or agreement of intent to change the management company.

When the owners find a new management company (on the Internet, reviews of residents of nearby apartment buildings, government agencies, etc.), the first step is negotiations (meetings) between the proactive owners of the apartment complex and the management of the management company. As a result of the meeting, a preliminary agreement was reached on the readiness of the new management company to accept MKD for management under certain conditions (validity of the management agreement, city rates for housing and communal services, management reporting, etc.). For their part, management company employees make a preliminary assessment of the attractiveness of the object for themselves (its territorial location, year of construction and technical condition, profitability of the apartment building, depending on its area, etc.). If, according to preliminary parameters, there are prerequisites for cooperation, then a date is planned for a meeting to select a new management company and approve the terms of the management agreement with it.

Draft MKD management agreement, MKD estimate, inspection report.

To prepare a draft management agreement, incl. estimate for the management of the MKD, management company, it is necessary to conduct an inspection of the technical condition of the MKD and obtain the following information and documents (copies) for the MKD:

technical passport, explication and floor plans of BTI;
contracts for the provision of utility services;
contracts for maintenance of elevators and smoke removal systems (SMS) and fire automatics (FSA);
contract for the removal of municipal solid waste (MSW) and bulky waste (LW);
information on the presence and quantity of input distribution devices (IDU), individual heating point (IHP), power plants, ventilation ducts, cleaning area and garbage chute;
documents on the ownership of premises and the number of residents.

If it is not possible to obtain complete information, you can draw up a draft management agreement with its subsequent revision. Alternatively, you can take as a basis a management agreement concluded between the owners of premises with a valid management company (if any).

Based on the inspection report of the technical condition of the apartment building, it is necessary to draw up a defect statement, which should become one of the annexes to the management agreement and record all the problems and defects of the common property at the time the apartment complex is accepted by the new management company.

Minutes of the general meeting of owners of apartment buildings (or a general meeting of HOA members or a meeting of the HOA board).

The general meeting procedure must be carried out in strict accordance with the provisions of Article 45-48 of the RF Housing Code, so that opponents of changing the Criminal Code do not have compelling arguments to challenge its decisions. In addition to the item on choosing a new management company, the agenda of the general meeting should include the following questions:

on approval of the form and terms of the management agreement, the mandatory conditions include: the composition of the common property of the apartment building, a list of works and services for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as the list of utilities provided by the management company, the procedure determining the price of the contract, the amount of fees for the maintenance and repair of residential premises, the amount of fees for utilities, as well as the procedure for making such fees, the procedure for monitoring the management company’s fulfillment of its obligations under the management agreement (clause 3 of Article 162 of the Housing Code of the Russian Federation);
It is advisable to separately approve the rate for the maintenance and repair of residential premises per 1 sq.m. per month for a year (clause 7 of article 156 of the RF Housing Code) and a plan for the current repair of apartment buildings for a year (clause 4.1 of article 44 of the RF Housing Code).

After counting the votes and drawing up the minutes of the general meeting, management agreements are concluded with 51% of the owners (if the management method is MC) or 1 management agreement with the HOA, indicating a specific date for its entry into force. It is recommended to take MKD in the spring-summer period, before the start of the heating season, preferably from the 1st day of the 1st month of the quarter. Under this condition, it is more convenient to renegotiate contracts with third-party organizations, incl. with government agencies for issuing budget subsidies.

Notifying all interested parties about the change of management company and renewing contracts.

According to clause 3 of Article 161 of the Housing Code of the Russian Federation, owners of premises can change the method of managing apartment buildings at any time. In accordance with part 8.2 of Art. 162 of the Housing Code of the Russian Federation, the owners of premises in an apartment building, on the basis of a decision of the general meeting, unilaterally have the right to refuse to execute a management agreement if the management company does not comply with the terms of such an agreement. This point, as well as the conditions for terminating the management agreement with the current management company, must be taken into account when preparing a notice of its change.

An important step is the notification by the owners of the premises (HOA) together with the selected management company of all participants in the procedure for transferring apartment buildings. The notification must be accompanied by certified copies of the minutes of the general meeting and the management agreement. It is advisable to serve notices no later than 1 month before the effective date of the management agreement.

Notified:

the former Criminal Code indicating the list of documents to be transferred to the newly elected Criminal Code within 30 days (clause 10 of Article 162 of the Housing Code of the Russian Federation). In Decree of the Government of the Russian Federation No. 491 of August 13, 2006. a list of documentation required for managing apartment buildings is given. Letter of the Ministry of Regional Development of the Russian Federation dated December 20, 2006 N 14313-RM/07 clarified that failure to transfer documentation does not mean the impossibility of transferring the MKD to a new management company;
government bodies responsible for compliance with housing legislation in the area of management of apartment buildings (in Moscow - district government);
state housing inspection;
organization responsible for making changes to the unified register of apartment building management (in Moscow - City Center for Housing Subsidies);
resource supply organizations (RSO) according to MKD. For example, in Moscow, in order for RSOs to renew contracts under a new management company, it is also necessary to send to them letters of termination of contracts under the old management company from the same period. If it is not possible to obtain letters, it is necessary to involve government authorities to convince the RSO;
contractors (on renegotiation or termination of existing contracts);
organizations that provide budget subsidies and benefits (in Moscow for subsidies for operation - GU IS AO Moscow, for benefits for residents - City Center for Housing Subsidies);
a single settlement center, if payments by owners were made through it, and not independently by the management company (in Moscow, the EIRTs GU IS district). In Moscow, in order to recode a single payment document (UPD) into the EIRC - change the current account of the old management company to the settlement account of the new management company, it is also necessary to get the former management company to sign an agreement (agreement) to exclude this apartment building from the list of houses for which the management company receives payments owners. This is the internal operating procedure of the EIRTs, strict adherence to which also depends on the relationship of the management of the district's GU IS with the former management company, and on whether the house remains under the jurisdiction of the EIRC when the management company changes.

A new management company needs to be prepared morally and financially for the fact that it may take 2-3 months to renegotiate contracts and transfer payments from owners and budget funds to itself. At first, the management company may incur losses. The process can be slowed down not only by the former management company, but also by local authorities if they are not interested in leaving the house out of the control of the local management company.

Beginning of activities to manage the apartment complex of the selected management company.

If it was possible to reach some kind of mutual understanding with the former management company, which did not resort to open confrontation and violation of the law in the fight for the house, then the new management company has the opportunity to begin full-fledged management of the apartment building according to the scheduled date. In such a situation, it is not necessary, but it is advisable to draw up a bilateral act on the condition of the common property of the apartment building. Such an act is signed by an authorized representative of the old and new management companies, representatives of the owners (or HOA), and representatives of government authorities. In the future, the act of the condition of the common property can be used to plan work on the management, maintenance and repair of common property and to evaluate the effectiveness of the management company’s work. It is also advisable to sign an act of acceptance and transfer of apartment building, documentation on it, keys to common property premises, material assets and financial resources (payments from owners, savings for repair work, etc.). Although in my practice, there were cases of signing acts of acceptance and transfer of apartment buildings and documentation, but as for funds and material assets, there were no cases. As a rule, a new management company begins its work from scratch. Owners of apartment buildings must settle debts and advance payments with the former management company independently.

If possible, in order to avoid mutual claims upon termination of the management contract, it is recommended that the owners of the premises reach agreements with the former management company on the following issues:

the period after which the obligations of the management company will be considered fulfilled;
the amount of work that the management company must complete before the agreed deadline;
expiration of management payments to the previous management company;
the procedure for the return of overpaid amounts to premises owners;
the procedure for transferring funds accumulated by the management company, but not aimed at major repairs of the common property of an apartment building;
the procedure for transferring documentation on MKD;
the procedure for relations on other issues arising upon termination of the management agreement.

In conclusion, a few recommendations to property owners, HOAs and management companies:

If the actions or inactions of the former management company prevent the start of work, then the management of the new management company together with the owners can turn to government authorities for assistance. So, for example, according to Article 20 and Article 165 of the Housing Code of the Russian Federation, local government bodies (executive power) and the housing inspection are called upon to monitor compliance with the law in the management of apartment buildings and ensure equal competitive conditions for all management companies. In Moscow, according to the resolution of the Moscow Government dated July 27, 2010. No. 644-PP “On the development of a competitive environment in the management of apartment buildings in the city of Moscow”, district governments are required not only to hold a competition to select a management company, but also to provide practical assistance to property owners in choosing a new management company, creating a HOA, and transferring apartment buildings.
Self-regulatory organizations (SROs) and the prosecutor's office also have the right to intervene in the actions of the criminal code if they violate the law. However, owners of premises and management companies often have to rely only on themselves, because There are no specific mechanisms and penalties in this matter.
If the management company is faced with the issue of acceptance and transfer of apartment buildings for the first time, then as a basis you can take samples of documents (act of acceptance and transfer of documents, act of transfer of management functions of apartment buildings, defective statements, form of management agreement, etc.) recommended by local authorities (in Moscow - orders of the Moscow Housing and Public Utilities Department dated September 29, 2006 No. 05-14-316/6 and dated March 21, 2011 No. 05-14-112/1).
The owners of apartment building premises and the selected management company also retain the right to go to court for violations of the procedure for transferring apartment building. But here you need to weigh whether the game is worth the candle. For example, if the only problem is the failure to transfer technical and design documentation, then it is easier to order a new package of technical documents from the BTI (on average in Moscow 10-20 thousand per 1 apartment building in the BTI, depending on the JSC within a month) and request design documents from archive (in Moscow in the Central Archive of Scientific and Technical Documentation t. 8499-724-3598, free of charge, within a month).
The change of the owners of the apartment complex of the management company, as well as the change of the apartment apartment for the management company, should be considered as an extreme measure, so that it does not work out, as popular wisdom says, to change “an awl for a soap”. Residents should remember that it is better to rebuild relationships (re-educate) if possible, an existing management company that knows your home, and not rush to believe in words that a new management company for the same money can radically change the condition of the house. And vice versa, not every new home is a gift for a management company. It happens that after studying the proposal of the residents of the house to accept them into management, because... the current Criminal Code only “violates and steals”, you find out that the Criminal Code only does the work that is included in the estimate and is not able to satisfy the wishes of residents at city rates, who also pay poorly for housing and communal services.

I would like to end on a positive note: the percentage of apartment houses that have replaced management companies is growing, indicating an increase in the activity of homeowners and the development of competition among management companies. Customers and providers of housing and communal services began to take a closer look at each other, choose new partners and build relationships seriously and for a long time.

From what point is rent calculated in a new building?

While the house is being built and the occupancy permit has not been signed, the developer is a party to temporary agreements with RSO. After the house is commissioned, resource supply agreements are concluded with the management company. The responsibility to pay for consumed resources is transferred to the owners of the premises after signing the acceptance document. Therefore, construction companies do not delay the delivery of keys, since it is not profitable for them to pay utilities for empty premises for a long time. The moment of accrual of rent depends on the period in question: before the handover of the keys, the developer pays, after - the owner of the residential or non-residential premises. The accounting department of the management company issues invoices to all owners every 1st day; they are required to be paid by the 10th day of the month following the expiration of the period. Payment is accepted through personal accounts of the Management Company, RSO or the City system.