Bankruptcy and liquidation of housing cooperatives: grounds, consequences and step-by-step instructions

Housing construction cooperatives are legal entities that are created for the construction of multi-apartment housing and subsequent maintenance of the property of such houses.
In accordance with the provisions of the Federal Law “On Insolvency (Bankruptcy)”, a housing construction cooperative is recognized as a developer. As a result of this identification, the bankruptcy procedure for housing cooperatives is carried out in strict accordance with the provisions inherent in such a procedure in relation to development companies. This procedure is regulated by Paragraph 7 of Chapter 9 of the said Federal Law, as well as by the Arbitration Procedural Code of the Russian Federation. Dear readers! To solve your specific problem, call the hotline or visit the website. It's free.
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Grounds for the bankruptcy procedure of housing cooperatives

If we are talking specifically about the liquidation procedure of a housing construction cooperative through bankruptcy proceedings, then it should be noted that it can only be carried out if the appropriate decision is made by the Arbitration Court. In turn, such a decision can be made if it has been proven that a legal entity has failed to fulfill its obligations, including due to the dishonesty of its leaders in the person of the chairman and board of the cooperative.

The initiators of a claim submitted to arbitration can only be creditors or contractors who interacted with the cooperative. Members of such a legal entity can only clarify their requirements during the period of compiling registers of financial claims and property claims.

Filing a claim for bankruptcy of a housing cooperative can be carried out on the following grounds:

the cooperative's expenses exceed its income , as a result of which this type of functioning of a legal entity is recognized as unprofitable;
systematically recorded violation of the requirements of current legislation in terms of financial legal relations, the correction of which is not possible;
loss of solvency , which occurs gradually or was recorded immediately.

One or more of the grounds listed above can be chosen as the basis for filing a claim, however, they will need to be confirmed from a documentary point of view, since, otherwise, the claim may be denied.

The court draws attention to the legality of the decisions of the OSS and the fulfillment by the HOA of its direct responsibilities

The presence of a decision by the HOA to liquidate an owners' association in which members have 50% or less of the total number of votes in the house is not a guarantee that such an HOA will actually be liquidated.

The board of the partnership or its chairman may refuse to take actions provided for in Art. Art. 61 – 65 of the Civil Code of the Russian Federation during the liquidation of a legal entity, effectively continuing the work of the HOA.

In this case, the authorized body may apply to the court with a claim for compulsion. But even in this case, the court may not make a positive decision on the liquidation of the partnership.

At the same time, in court, the initiators of the liquidation of the HOA must prove that the relevant decisions were made at the OSS/OSCh in accordance with the requirements of the Housing Code of the Russian Federation (decisions of the Vyborgsky District Court of St. Petersburg in case No. 2-887/2018, Zubtsovsky District Court of the Tver Region in the case No. 2-221/2018).

When considering such cases, the court pays attention to the actual implementation by the partnership of its responsibilities for managing an apartment building, the presence/absence of gross violations during its creation (decisions of the Starooskolsky City Court of the Belgorod Region in case No. 2a-3123/2018, Leningradsky District Court of Kaliningrad in the case No. 2-2138/2018, Zheleznodorozhny District Court of Penza in case No. 2a-1348/2018).

Features of the procedure

When conducting a bankruptcy procedure, in addition to the above-mentioned feature regarding the filing of a statement of claim for this type of proceeding, there are a number of certain features, which include:

mandatory observance of the order of satisfaction of existing claims of a financial and property nature (first, the claims of creditors - the requirements of the first priority, then the demands of contractors - the requirements of the second priority, then the demands of members - the requirements of the third priority);
during the bankruptcy procedure, it will be necessary to demolish all those buildings that are illegal in nature , or complete the procedure for registering ownership rights to those that are in the process of registration;
after the completion of the bankruptcy procedure of the housing cooperative, another cooperative may be created , which will be responsible for completing the construction of the disputed property.

Reasons for elimination

Sometimes situations arise in which it is necessary to terminate the work of a community without legal succession - to carry out liquidation. The closure procedure must meet the requirements of the law, in particular, comply with the provisions of the Federal Law “On Production Cooperatives”, the Federal Law “On Agricultural Cooperation”, the Civil Code of the Russian Federation and other regulations.

Liquidation of a production cooperative is carried out for a number of reasons, including the following:

Termination of further activities at the request of the participants themselves.
The emergence of factors that impede further work. This includes the actual reduction of participants below the permitted level.
Bankruptcy of the organization.
Liquidation of a consumer cooperative can be carried out by a court decision. Forced closure becomes possible if there are facts of violation of legal rules.

Voluntary termination is usually related to the achievement of the participants' goals or the end of the term. The corresponding decision is made at a general meeting, where a liquidation commission is appointed. In case of bankruptcy, the decision to terminate activities is made in the presence of creditors.

If a verdict on forced closure is made as a consequence of identified violations, the meeting of participants is obliged to make a decision on liquidation or eliminate the reasons.

Consequences of bankruptcy

The main consequences of the bankruptcy procedure of a housing construction cooperative include:

complete liquidation of a legal entity , which will entail the termination of all its existing obligations;
blocking ongoing construction activities , the result of which could be the satisfaction of the property requests of the cooperative members;
the property interests of the members of the housing construction cooperative will be satisfied only in the third place and only if, after all settlements with creditors and contractors, various resources remain in the organization’s accounts or among its property to repay this type of debt;
as mentioned above, after receiving documents on the liquidation of a legal entity, a procedure for creating a new legal entity can be carried out either in the form of a housing cooperative or in some other form, which will continue the construction of the house in question. At the same time, another legal entity may be created to maintain the property of such a house.

In the absence of a decision by the OSS, the liquidation of the owners' association can only be approved by a court

Let us dwell separately on the case specified in Part 2 of Art. 141 of the Housing Code of the Russian Federation, which states the obligation of the owners of the OSS to make a decision on the liquidation of the HOA if the members of the partnership have 50% or less of the votes of the total number of votes of the owners in the house.

Expert opinion

Itskov Dmitry

In this case, a contradictory situation arises: the owners have such an obligation, but no one can force them to meet at the OSS and make such a decision.

The regulations do not stipulate anywhere a mechanism for coercing owners or punishing them for inaction. In the absence of a decision from the OSS to liquidate the HOA, residents of the house can only achieve this with the help of regulatory authorities in court in connection with a gross violation of the law (resolution of the Federal Antimonopoly Service of the Far Eastern District in case No. A73-2002/2011, decision of the Stary Oskol City Court of the Belgorod Region in case No. 2a -3123/2018).

Procedure for liquidation

As for the liquidation procedure, it looks like this:

first you will need to organize a general meeting at which the main documents regarding the liquidation procedure will be adopted;
the next stage is the election of members of the liquidation commission , who will carry out the actual liquidation procedure;
after all the necessary documents have been accepted, you will need to sign the minutes of the meeting at which the decision to liquidate the legal entity was made;
the next stage is the formation of an interim balance sheet , on the basis of which the unprofitability or profitability of a legal entity becomes clear;
after the formation of the balance sheet, it will be necessary to notify all state authorities about the decision on liquidation , since this decision must be communicated to such authorities in order to make appropriate changes to state registers;
since information about the liquidation of a cooperative must be communicated to all its members and interested parties, it is also necessary to publish an announcement about the liquidation of a legal entity;
the next stage is settlement with all creditors and contractors with whom the housing cooperative has entered into agreements on the provision of financial resources and the provision of services to maintain common property in proper condition;
formation of the final liquidation balance sheet , reflecting the final picture of the financial condition of the liquidated cooperative;
obtaining from government agencies a certificate of deregistration of a particular cooperative as a legal entity.

If the creation of a liquidation commission could not be avoided for some reason, it should be understood that all powers to manage the cooperative and represent its interests are completely transferred to it until the complete liquidation of such a legal entity.

If liquidation occurs due to confirmed bankruptcy, then after the formation of an interim balance sheet, bankruptcy management is established. The purpose of such management is to formalize the sale of property that belongs to the cooperative in order to obtain funds to pay off existing debts.

The sale of such property occurs at auction in order to obtain the maximum possible amount of funds. At the same time, the property of the cooperative members, for which share contributions are paid (but not yet paid in full), must first of all be sold to such members. Only if members of the cooperative recognize the impossibility of redeeming their property in full, it will also be put up for auction, but with a mandatory refund of funds previously contributed to such members of the cooperative.

What is the reorganization of housing cooperatives and in what cases is it applied?

Changing the format of a housing cooperative’s activities does not always lead to the cessation of its existence; the optimal solution may also be the reorganization of the residents’ association.

Article 122 of the Housing Code of the Russian Federation declares the possibility of reformatting a cooperative into a homeowners' partnership (HOA) in order to carry out a merger of organizations, division or transformation.

The decision to reorganize the enterprise must be made at a general meeting of its participants with the approval of all functional aspects of the activity of the enterprise, which will be created according to the new format.

Unlike liquidation, the reorganization of such a department provides for the transfer of all its rights and obligations to the newly created HOA. According to legal norms, registration of an HOA is a mandatory procedure for legalizing this activity.

Despite the fact that cases of liquidation of housing cooperatives do occur, in general, this form of organization of citizens is quite effective. You can learn more about the nuances of its activities in the following publications:

Pros and cons of housing cooperatives, as well as recommendations for minimizing risks when purchasing an apartment under a housing cooperative agreement.
How and with the help of what documents are records of the activities of housing cooperatives kept?
In what cases and by whom is a housing cooperative agreement concluded?
What is buying an apartment under a housing cooperative agreement?
How to register ownership of an apartment in a housing cooperative?
Who has the right to join the housing cooperative?

Necessary documents to confirm the legality of liquidation

The liquidation procedure must be confirmed by a package of documents that record the legality of such a process. Such documents include:

Charter and accompanying documents , which relate to constituent documents;
certificates of registration of a housing construction cooperative as a legal entity and of registration of such a legal entity with the tax authorities of the Russian Federation;
extract from the Unified State Register of Legal Entities , which contains current information about the state of the cooperative;
information about the members of the cooperative with a breakdown of their passport data , as well as information about the assigned TIN;
similar information for the chairman of the cooperative , as well as for the heads of the financial division of the cooperative;
if the members of the liquidation commission are proposed by the liquidator organization or the chairman of the housing construction cooperative, then similar information will be required in relation to the members of such a commission;
notifications that will confirm information that notifications have been sent to government authorities, as well as to all creditors and counterparties of the legal entity about the planned termination of the activities of the legal entity, as well as about the liquidation procedure.

Otherwise, the liquidation procedure may be suspended due to the fact that the procedure for documenting the liquidation procedure has not been followed.

Drawing up an application

The application is written by hand in a standard form:

A cap is formed in the upper right corner, which indicates the name of the organization and the full address, from whom, and where the member of the organization lives.
After the words “statement” it is indicated that with this document the citizen notifies of his withdrawal.
At the end there is a date and signature.

It turns out that the company is liquidated in all of the above cases - this is reorganization, bankruptcy, and on the company’s own initiative, all of which imply the termination of the existence of a legal entity. However, each method has its own nuances, for example, when powers are transferred to the successor. There is also a difference whether the liquidator or the liquidation commission is involved in the procedure.

Voluntary liquidation of a cooperative

If a housing construction cooperative has been declared bankrupt based on a decision of an arbitration court or as a result of an interim balance sheet, then a procedure for voluntary liquidation of the cooperative may be carried out. It looks like this:

after the court has made a decision on the need to liquidate the cooperative or establish the fact of financial insolvency of a legal entity, a meeting is convened , at which a decision is made by vote on the need to liquidate the cooperative;
the protocol of the decision made is sent along with the liquidation documents to the territorial division of the tax authorities at the place of registration of the legal entity;
final documents on the liquidation of a legal entity are obtained.

Only government agencies or a municipality can file a lawsuit to liquidate an HOA.

When liquidating an HOA through the court, it is important who exactly filed the claim, since Part 3 of Art. 61 of the Civil Code of the Russian Federation, the circle of persons authorized to carry out such actions is strictly limited. This list does not include individuals who are owners or tenants of premises in an apartment building.

the State Housing Supervision Authority in the event that the procedure for creating a partnership was violated or other irreparable gross violations of the law were identified in the activities of the HOA (Part 6, Article 20 of the RF Housing Code, paragraphs 1, 3, Part 2, Article 61 of the Civil Code of the Russian Federation);
the prosecutor's office, if during an inspection of the work of the partnership, violations of the rights, freedoms and legitimate interests of citizens, an indefinite circle of persons or the state were revealed (Article 35 No. 2202-1, Part 1 of Article 45 of the Code of Civil Procedure of the Russian Federation);
local government body when identifying violations during the creation of an owners' partnership or gross violations of the legislation of the Russian Federation.

We also note that the tax authority can apply to the court with a claim for liquidation of any organization (Part 11, Article 7 No. 943-1).

If the claim is filed by a resident of an apartment building, then the court indicates that the plaintiff lacks the appropriate authority and rejects the individual’s complaint (decision of the Blagoveshchensky District Court of the Republic of Bashkortostan dated September 25, 2018 in case No. 2-446/2018).