Article 162 of the RF Housing Code. Apartment building management agreement (current version)

By decision of the general meeting of owners

Most often, a management organization comes to work in an apartment building by decision of the general meeting of premises owners (Part 1 of Article 162 of the Housing Code of the Russian Federation). This may be the first choice of residents of a new building or a change of company, a change in the management method from an HOA or cooperative to a management company.

According to part 5, 6 art. 162 of the Housing Code of the Russian Federation, the management agreement in this case is concluded for a period of one to five years with automatic extension for a similar period, if neither the management company nor the owners express a desire not to renew it.

The initiator of the OSS on the selection of a management organization and the conclusion of a management agreement with it can be any owner, an existing management organization, or a municipality in accordance with Part 6 of Art. 161 Housing Code of the Russian Federation. Decisions on these issues are made by a simple majority: 50% + 1 heads from all votes of the owners present at the meeting (clause 4, part 2, article 44, part 1, article 46 of the Housing Code of the Russian Federation).

When choosing a management organization, a management agreement is concluded with each owner in such a house. At the same time, the residents of the house are represented by the owners of the premises, who have more than 50% of the votes of the total number in the apartment building.

Neighbours

The Management Agreement is the cornerstone of the relationship between the owner and the Management Company. But the owners not only don’t know about this, but they haven’t even seen the agreement.

And where can you see him? Only on the official website of Reform Housing and Communal Services RU. But you won’t see him there either, because it’s not profitable for the manager. So how do you get it to be placed there? Only through the Moscow Housing Inspectorate - through the website dom.gosuslugi.ru. We have detailed instructions on how to register on this site.

Know that when you write an application to the housing inspectorate, you will receive an answer that everything you need is already posted on the website and according to PP 731 they are not obliged to publish Management Agreements. So this is not so - below is the competent opinion of an expert: the manager MUST publish the remote control!

Read and use this article in your applications.

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The editors of the magazine received the following question. The Management Company has posted a template for a draft management agreement in Word format on the website www.reformagkh.ru. The inspectorate considered that the organization should have published copies of contracts in the form of electronic files, and, accordingly, issued an order for incomplete publication of information in violation of the standard. Explain where the Criminal Code is wrong.

According to paragraphs. “b” clause 3 of the Information Disclosure Standard approved by the Decree of the Government of the Russian Federation of September 23, 2010 № 731,

The management organization
is obliged to disclose information such as a list of apartment buildings that it manages, indicating the address and basis for management of each apartment building. From clause 2 of form 1.4
“List of apartment buildings managed by a management organization, partnership, cooperative”, approved by Order of the Ministry of Construction of the Russian Federation dated December 22, 2014
No. 882/ pr
, it follows that the grounds for managing a house are understood as a management agreement, minutes of the general meeting of owners , protocol of an open competition held by a local government body.
In turn, form 2.1 “General information about an apartment building” (clause 3) requires the attachment of a copy of the apartment building management agreement in the form of an electronic file.
The Criminal Code is not clear about which copy of the document should be attached as a file:

“fish” of the agreement containing the conditions approved by the decision of the general meeting of owners of the premises;

a draft agreement signed by the management company;

an agreement signed by the management company and one of the owners;

agreements signed by the management company and each of the owners, who in total have more than 50% of the votes.

The wording of the by-laws does not allow us to answer this question, so we will have to resort to a systematic analysis of the norms of housing legislation. The Disclosure Standard talks about the basis for managing a particular home. It seems that in the case of a management company, this can only be a concluded management agreement.

The fact is that, by virtue of Part 7 of Art. 162 of the RF Housing Code, unless otherwise established by the MKD management agreement, the management company is obliged to begin implementing such an agreement no later than 30 days from the date of its signing. In turn, according to Art. 198 of the Housing Code of the Russian Federation, the licensee has the right to carry out activities related to the management of a specific house only after he himself publishes the relevant information on the official website for disclosure of information and the body of the Civil Housing Inspectorate enters the house into the register of licenses of a constituent entity of the Russian Federation in connection with the conclusion of a management agreement for apartment buildings (before this, the management company is obliged to provide officials a copy of the management agreement signed in accordance with the requirements of the Housing Code of the Russian Federation - see Letter of the Ministry of Construction of the Russian Federation dated 08/05/2015 No. 24430-АЧ/04).

Thus, you can start managing the house only if you sign a management agreement for the apartment building.

According to Part 1 of Art. 162 of the Housing Code of the Russian Federation, a management agreement is concluded in writing or in electronic form using the GIS Housing and Communal Services by drawing up one document, which is signed by the parties. In this case, the owners of premises who have more than 50% of the votes of the total number of votes of the owners of premises in a given building act as one party to the concluded agreement. Thus,
management agreement as the basis for managing the house is considered concluded in proper form when it is signed by the parties .
This means that it can be considered that the management company has disclosed information about the basis for managing the house (as required by paragraph “b” of clause 3 of the Information Disclosure Standard) only if it has posted
copies of agreements signed by the management company on the one hand and the owners of the premises (owners of more than half the votes) on the other side.
Thus, the goal of disclosing the management company’s information will be achieved, first of all, for clients: the owners of the premises can verify whether the management company manages the house legally, identify possible forgeries, etc.

add
: a copy of the contract with all integral parts ( appendices ), which usually contain a list of works , services , and their costs, must be . The terms of the agreement must comply with the conditions approved at the general meeting of premises owners and be the same for all consumers .
Additionally, you should keep in mind the requirements of the legislation on personal data.

It is known that in practice, the bodies of the State Housing Inspectorate recommend that the management company (and consider this sufficient) to post on the official website for the purpose of disclosing information copies of management agreements signed only by the management company. However, this option, in essence, is no different from placing a “fish” agreement (a sample agreement with all the essential terms in relation to a specific house, not signed by both parties).

The presence of a signature on the copy of the agreement on the part of the management company, as well as the absence of any signatures or the presence of signatures of the management company and owners with less than 50% of the votes, does not indicate the fact of the conclusion of this agreement. Such an agreement cannot be considered as a basis for managing an apartment building.

* * *

A systematic analysis of the norms of housing legislation allows us to come to the conclusion that, as part of the disclosure of information about the management activities of apartment buildings, the management company is obliged to post a copy of the management agreement with the signatures of the parties: the management company and the owners of premises holding more than 50% of the votes of the total number of votes of the owners of premises in the building. Such an agreement is the basis for managing the house.

E. V. Emelyanova,

magazine editor

“Housing and communal services: accounting and taxation”, No. 12, December, 2015.

https://www.audar-urist.ru/articles/153/raskrytie-informacii

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Based on the results of an open competition

Also, a house often receives its own management organization based on the results of an open competition. This is due to the fact that:

• the owners of premises in the apartment building did not conduct an OSS and did not choose a management method (Part 4 of Article 161 of the Housing Code of the Russian Federation);
• The OSS was carried out, but the chosen management method was not implemented (Part 4 of Article 161 of the RF Housing Code);
• the house was managed by a management company selected earlier in an open competition, the management contract expires, and the owners have not carried out the OSS (Part 4 of Article 161 of the Housing Code of the Russian Federation);
• the new building has been put into operation, and the owners have not yet decided to choose a management organization or create a homeowners association or cooperative (part 13 of article 161 of the Housing Code of the Russian Federation);
• The current management company lost its license or the right to manage the house due to violations of licensing requirements, including gross ones (Part 5 of Article 200 of the Housing Code of the Russian Federation).

In all these cases, according to Part 4 of Art. 161 of the Housing Code of the Russian Federation, the local government body must hold an open competition to select a management authority for an apartment building. He does this in accordance with Decree of the Government of the Russian Federation dated 02/06/2006 No. 75. The winner of the open competition is the management entity that offers to carry out the list of works and services specified by the municipality for the least amount of payment.

The local government body, within ten days from the date of the open competition, notifies the residents of the house about its results and the conditions of the tender. Owners of premises in apartment buildings are required to conclude such an agreement in accordance with Art. 445 of the Civil Code of the Russian Federation (part 5, 13, article 161 of the Housing Code of the Russian Federation).

If within two months from the date of the open tender the owners have not concluded a management agreement with the management company, the agreement is considered concluded automatically. The validity period of such a remote control is from one to three years (Part 5 of Article 162 of the Housing Code of the Russian Federation).

New rules for choosing a management authority for an apartment building through competition and without

Article 162 of the RF Housing Code. Apartment building management agreement (current version)

1. An agreement for the management of an apartment building is concluded with a management organization that has been granted a license to carry out activities for the management of apartment buildings in accordance with the requirements of this Code, in writing or in electronic form using the system by drawing up one document signed by the parties. When choosing a management organization by a general meeting of owners of premises in an apartment building, a management agreement is concluded with each owner of premises in such a building on the terms specified in the decision of this general meeting. In this case, the owners of premises in this building, having more than fifty percent of the votes of the total number of votes of the owners of premises in this building, act as one party to the concluded agreement. Each owner of premises in an apartment building independently fulfills the obligations under the management agreement for the apartment building, including the obligation to pay for residential premises and utilities, and is not responsible for the obligations of other owners of premises in this building.

1.1. In the case provided for in Part 13 of Article 161 of this Code, with each person who has accepted from the developer (the person providing the construction of an apartment building) after issuing permission to put an apartment building into operation, premises in this building under a transfer deed or other transfer document shall be concluded management agreement for an apartment building. Moreover, such persons act as one party to the concluded agreement if they constitute more than fifty percent of their total number.

2. Under an agreement for the management of an apartment building, one party (the management organization) on the instructions of the other party (the owners of the premises in the apartment building, the management bodies of the homeowners’ association, the management bodies of a housing cooperative or the management bodies of another specialized consumer cooperative, the person specified in clause 6 of part 2 Article 153 of this Code, or in the case provided for in Part 14 of Article 161 of this Code, the developer) within an agreed period for a fee undertakes to perform work and (or) provide services for the management of an apartment building, provide services and perform work on the proper maintenance and repair of common property in such a house, provide utility services to the owners of premises in such a house and persons using the premises in this house, or in cases provided for in Article 157.2 of this Code, ensure the readiness of engineering systems, and carry out other activities aimed at achieving the goals of managing an apartment building.

2.1. The management agreement for an apartment building, concluded in the manner established by this article, must be placed by the management organization in the system in the manner established by the federal executive body exercising the functions of developing and implementing state policy and legal regulation in the field of information technology, together with the federal an executive body that carries out the functions of developing and implementing state policy and legal regulation in the field of housing and communal services.

3. The management agreement for an apartment building must indicate:

1) the composition of the common property of the apartment building in respect of which management will be carried out, and the address of such a building;

2) a list of works and (or) services for the management of an apartment building, services and works for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the management organization, with the exception of utility services provided in in accordance with Article 157.2 of this Code;

3) the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and the amount of payment for utility services, as well as the procedure for making such payment, with the exception of payment for utility services provided in accordance with Article 157.2 of this Code;

4) the procedure for monitoring the management organization’s fulfillment of its obligations under the management agreement.

4. The terms of the management agreement for an apartment building are established the same for all owners of premises in the apartment building.

5. The management agreement for an apartment building is concluded:

1) in the case specified in part 1 of this article, for a period of not less than one year, but not more than five years;

2) in the cases specified in parts 4 and 13 of Article 161 of this Code, for a period of no less than one year, but not more than three years;

3) in the case specified in Part 14 of Article 161 of this Code, for a period of no more than three months.

6. In the absence of an application from one of the parties to terminate the management agreement for an apartment building at the end of its validity period, such an agreement is considered extended for the same period and on the same conditions as provided for in such an agreement.

7. The management organization is obliged to begin executing the management agreement for an apartment building from the date of making changes to the register of licenses of a constituent entity of the Russian Federation in connection with the conclusion of a management agreement for such a building.

8. Changes and (or) termination of the management agreement for an apartment building are carried out in the manner prescribed by civil legislation.

8.1. Owners of premises in an apartment building unilaterally have the right to refuse to execute a management agreement for an apartment building, concluded as a result of an open competition provided for in parts 4 and 13 of Article 161 of this Code, after each subsequent year from the date of conclusion of the said agreement if, before the expiration of the term validity of such an agreement, the general meeting of owners of premises in an apartment building made a decision to choose or change the method of managing this building.

8.2. Owners of premises in an apartment building, on the basis of a decision of the general meeting of owners of premises in an apartment building, unilaterally have the right to refuse to fulfill the management agreement for an apartment building if the management organization does not comply with the terms of such agreement, and decide to select another management organization or change the method of managing this home.

9. Management of an apartment building, which is owned by a housing cooperative or in which a homeowners’ association has been created, is carried out taking into account the provisions of sections V and VI of this Code.

10. The management organization, within three working days from the date of termination of the management agreement for an apartment building, is obliged to transfer technical documentation for the apartment building and other documents related to the management of such a building, keys to the premises that are part of the common property of the owners of premises in the apartment building, electronic access codes to equipment included in the common property of the owners of premises in an apartment building, and other technical means and equipment necessary for the operation and management of an apartment building, a newly selected management organization, a homeowners' association or a housing or housing-construction cooperative or other specialized consumer cooperative , and in the case of direct management of such a house by the owners of premises in such a house, to one of these owners, indicated in the decision of the general meeting of these owners on the choice of the method of managing such a house, or, if this owner is not specified, to any owner of the premises in such a house.

11. Unless otherwise established by the management agreement for an apartment building, the management organization annually, during the first quarter of the current year, submits to the owners of premises in the apartment building a report on the implementation of the management agreement for the previous year, and also places the specified report in the system.

12. If, based on the results of the execution of the management agreement for an apartment building in accordance with the report on the implementation of the management agreement posted in the system, the actual expenses of the management organization turned out to be less than those that were taken into account when establishing the amount of payment for the maintenance of residential premises, subject to the provision of services and (or) performance of work for the management of an apartment building, provision of services and (or) performance of work on the maintenance and repair of common property in an apartment building, provided for by such an agreement, the specified difference remains at the disposal of the management organization, provided that the savings received by the management organization did not lead to inadequate quality of services provided and (or) work performed on the management of an apartment building, services provided and (or) work performed on the maintenance and repair of common property in an apartment building, provided for by such an agreement, confirmed in the manner established by the Government of the Russian Federation. In this case, the management agreement for an apartment building may provide for a different distribution of the savings received by the management organization.

The municipality appointed a building authority to the house as a temporary

Cases when the management authority receives a house under management as a temporary one appointed by the municipality are described in Part 17 of Art. 161 Housing Code of the Russian Federation. A local government body can independently determine a management organization if the owners have not chosen a management method or have not implemented it, and the open competition is declared invalid.

The procedure for selecting a temporary management company for a house is described in Decree of the Government of the Russian Federation dated December 21, 2018 No. 1616. The temporary company is selected from the list that includes all management companies that have submitted the appropriate application and, or from January 1, 2021, participated in any open competition for the selection of a management organization (clauses 52, 53 RF PP No. 75).

Organizations are included in the list in chronological order: by date of application or application for participation in the competition. According to clause 8 of RF PP No. 1616, from the list the municipality selects the one that manages the smallest number of houses. If one UA was previously given three houses for temporary management, and another – four, then the local government body will appoint the first of these companies to the house.

When a local government authority has chosen a management authority for a house, it has five working days to notify the owners of the premises in writing about its decision and the terms of the management agreement. The management agreement between the temporary company and the owners of the premises is concluded automatically from the date of its appointment.

The management entity selected by the local government body works in the house until the owners conduct an OSS and decide on the management method, enter into a management agreement with the company they have chosen, or an open municipal competition takes place. However, this period cannot exceed one year.

By decision of the board of the HOA or cooperative

Other cases of concluding management agreements can be called private: they are possible only under certain circumstances. For example, in a house where the owners have created a HOA or cooperative. According to clause 1, part 1, art. 137, part 2.2 art. 161 of the Housing Code of the Russian Federation, a homeowners’ association or cooperative can provide services for the maintenance and repair of common property themselves or engage a third-party company under a contract. When concluding a management agreement, the HOA and housing complex monitor the fulfillment of the management organization’s obligations under it.

The decision to conclude a management agreement is made by the board of the owners’ association by a simple majority of votes (part 6 of article 147.6, part 4 of article 148 of the Housing Code of the Russian Federation). It is drawn up in the minutes of the board meeting, the document is signed by the chairman of the board and the secretary of the meeting.

In this case, the management agreement is concluded between the selected organization and the HOA or cooperative. By analogy with an agreement concluded by decision of the OSS, the validity period of the management agreement is from one to five years, unless otherwise provided by the Charter of the partnership or cooperative.

When a management agreement between an HOA and a management company is invalidated

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Management agreement with the sole owner of all premises in the house

Another special case of concluding a management agreement is based on the decision of the sole owner of all premises in an apartment building. It is important here not to confuse it with a situation where the owner of all premises is the Russian Federation or the municipality. According to Part 2 of Art. 163 of the Housing Code of the Russian Federation, the management agreement for such an apartment building is concluded on the basis of an open competition in accordance with Part 4 of Art. 161 Housing Code of the Russian Federation.

A completely different case is when all the premises in the house belong to a private company, for example, an enterprise in a subordinate hostel. Then it is the owner who enters into a management agreement with the management company he has chosen for a period of one to five years with automatic extension.

Management agreement with the developer

The conditions for concluding a control agreement in a new building immediately after its commissioning are prescribed in Part 14 of Art. 161 Housing Code of the Russian Federation. Five days after the date of receipt of permission to put the apartment building into operation, the developer enters into a management agreement with the company he has chosen.

In this case, the management organization will act as a contractor for the developer. It must enter into agreements with the RSO on the basis of the act of putting the apartment building into operation.

The validity period of such a remote control is no more than three months. During this period, the owners will have time to conduct an OSS and select a management company, or the municipality will announce and hold an open competition.

Change of management organization

Choice of management company. Owners can choose whether to change the management company or the HOA at a general meeting based on Part 3 of Art. 161 Housing Code of the Russian Federation. The basis for this is an agreement with signatures of 50% of the owners plus 1 signature of the total number of signatures.

Signature right. If the residents issued powers of attorney to the Chairman of the MKD Council, then he, on the basis of paragraphs. 3 paragraphs 8 art. 161.1 of the Housing Code of the Russian Federation can conclude an agreement independently. His signature and copies of powers of attorney will be sufficient.

Change in the license register. After Goszhilnadzor confirms the changes to the register of licenses, the MKD passes to the selected management company, which undertakes to maintain it.

• 02.10.2019

Use all options for obtaining houses under management for company growth

Management organizations that seek to expand and develop their business by obtaining new houses for management should use all cases of concluding management agreements.

For the management company and the residents of the building, the optimal way to conclude a management agreement is to choose a company on the OSS. The management organization comes to the house without third-party interference or imposition, and the residents of the house understand that they themselves chose the company for their home.

Also, the MA can actively participate in open competitions of the municipality, thereby having a chance to become a “temporary” PA assigned to the house. This may be an opportunity to convince the owners of premises in the house to choose an OSS company for further management.

Most often, “its own” management company operates under an agreement with the developer, but in an effort to expand, it can also go beyond the scope of new buildings and enter into management agreements under other conditions. You can consider negotiating options with the HOA, offering the board professional management of the house.

Analyze your capabilities and the market for managing apartment buildings in your city and region and choose the optimal path for the development of the company.