How to hold a general meeting of premises owners in an apartment building?

Who can initiate an OSS

If the meeting is held for the first time in a new building, then the initiator may be one or more owners of the premises. The first annual meeting in such a house can be organized by those owners who were elected at the primary meeting as an initiative group (clause “a”, clause 2, section III of Order of the Ministry of Construction of the Russian Federation dated July 31, 2014 No. 411/pr).

Annual and extraordinary meetings can be initiated by:

• Any owner of the premises is a legal entity or an individual (Part 2, Article 45 of the Housing Code of the Russian Federation).
• A group of owners who have at least 10% of the votes of the total number of votes in the apartment building.

In this case, the owners discuss and draw up an agenda on which they want to hold a meeting, then contact the management company, HOA or housing (housing-construction) cooperative, which, in turn, are obliged to hold a meeting with such an agenda within 45 days from the date of application (Part 6, Article 45 of the RF Housing Code). The disadvantage of this method of organizing a meeting is the duration of the process: by the time it is held, the agenda may no longer be relevant.

• The initiator of the meeting can be the management organization itself, but only the one that manages the house on the basis of a management agreement for the apartment building.

Sometimes a situation arises when a management organization that is not related to the house, in pursuit of its goals, tries to organize a general meeting. She does not have such a right. All decisions made at such a meeting, if it did take place, can be easily challenged (Part 7 , Article 45 of the RF Housing Code).

It happens that the management organization has lost its license, but continues to manage the apartment building, having a valid management agreement. Such a management organization has the right to be the initiator of the OSS until a new organization is selected by competition or by decision of the general meeting, or another method of management is organized.

• Board of the HOA (Clause 8 of Article 148 of the Housing Code of the Russian Federation).
• Local government body.

Notification methods

You can choose one of the following methods:

• written notice with signature

To serve notices, a special register is drawn up, which will confirm the fact of notification to the owner. Each owner who received the message must sign this form (clause “c”, paragraph 20 of Order of the Ministry of Construction of the Russian Federation dated January 28, 2019 No. 44/pr).

• ordered letter

When serving a notice by registered mail, it is not necessary to receive a return receipt with a signature. A message is considered delivered even if it arrived at the addressee, but for some reason was not delivered or the addressee was unable to familiarize itself with it (Article 165.1 of the Civil Code of the Russian Federation).

Russian Post puts a barcode on the letter with a number by which you can track the location of the letter. Once the letter is delivered, the owner is considered to have been properly notified.

When calculating the notice period, it is necessary to take into account the time it will take for the delivery of letters.

At what address should the owner be notified if he lives at a different address or owns several premises? Courts have different opinions on this matter, so it is better to make a decision at one of the first OSSs that the owner will be notified precisely at the location of the property he owns.

• Information Table

Posting information about the meeting in a place accessible to all premises owners is a cheap, convenient and fast way.

This option is only possible if at one of the previous meetings it was decided that the owners would be notified about the OSS in this way. This form will be legal not only for the next one, but also for all subsequent meetings (Part 4 of Article 45 of the RF Housing Code).

• other notification methods

Another notification method may be selected: simple (not registered) or email, GIS Housing and Communal Services or another information system.

An option other than a registered letter with notification must be agreed upon in the management agreement, the charter of the HOA or at the previous general meeting (Part 4 of Article 45 of the Housing Code of the Russian Federation).

When conducting an OSS in absentia or in absentia, together with a notification, each owner is sent decision forms on the agenda items and the information necessary for making a decision.

Local government as the initiator of the OSS

The local self-government has the right to initiate a general meeting in the following cases:

• if the municipality has the right of sole ownership of residential or non-residential premises in the house;
• convenes a meeting of the owners of the premises in this house to decide on the choice of method of managing this house, if such a decision has not been made previously (Part 6 of Article 161 of the Housing Code of the Russian Federation);
• if the local government body, on the basis of an appeal from the owners, the chairman of the council of apartment buildings, the management bodies of homeowners' associations, housing complexes, housing cooperatives, reveals the failure of the management organization to comply with the terms of the management agreement for apartment buildings - to terminate the contract with such a management entity, to select a new management company or to change the method of management of apartment buildings (Part. 1.1. Article 165 of the Housing Code of the Russian Federation);
• if the agenda of the meeting includes questions about the election of the council of the apartment building, including the chairman of the council, or about the creation of a homeowners association in this building (Article 161.1 of the Housing Code of the Russian Federation);
• if the owners of the premises in the house did not make a decision on choosing the method of forming a capital repair fund (Part 6 of Article 170 of the Housing Code of the Russian Federation).

State Housing and Construction Supervision Service of the Irkutsk Region

21.03.2016

Types of ownership of real estate

Before proceeding to counting votes at the OSS, it is necessary to determine the types of ownership of premises in the apartment building. Since the correct counting of votes at the general meeting depends on the type of ownership of real estate.

For example, if there is not one, but several owners in an apartment, then each of them will have the right to vote in proportion to the share in the common property right. Therefore, if from some apartment only one owner out of two or three shareholders was present at the OSS, then his vote cannot be counted for all the owners of this apartment if he does not have a power of attorney from these owners. Because of this, often if votes are counted incorrectly, a quorum may or may not be reached, which can subsequently be challenged in court. In this case, the meeting will be declared invalid.

Real estate can belong to owners on the basis of joint and common shared ownership .

According to Article 244 of the Civil Code of the Russian Federation, property owned by two or more persons belongs to them under the right of common ownership. Common ownership of property is recognized as shared ownership, unless the law provides for the formation of joint ownership of this property.

In accordance with clause 1 of Article 245 of the Civil Code of the Russian Federation, the shares of participants in the right of common ownership of real estate can be determined by their agreement or on the basis of law. If the size of the shares cannot be determined by the listed methods, then they are recognized as equal.

It is interesting that the Civil Code of the Russian Federation does not specify in what terms the size of shares in the right of common ownership of real estate is determined. However, from the precedents of law enforcement practice, a point of view emerges that allows the shares of participants in common shared ownership of real estate to be expressed both in fractions and as percentages (Resolution of the Federal Antimonopoly Service of the Moscow District dated 03/07/2003 No. KG-A40/944-03).

A similar judgment is contained in clause 5.18 of the Procedure for filling out the form “Information on the inventory value of real estate and other information necessary for calculating taxes” (Order of the Federal Tax Service dated February 11, 2011 No. ММВ-7-11 / [email protected] ).

The right of ownership and other real rights to real estate (restriction, emergence, transition and termination) are subject to state registration in the Unified State Register of Authorities by the bodies that carry out state registration of rights to real estate and transactions with it (Article 131 of the Civil Code of the Russian Federation).

In accordance with the Rules for maintaining the Unified State Register, the size of the share in the right of common ownership must be indicated (Order of the Ministry of Economic Development No. 765 of December 23, 2003). This rule specifies the indication of the size of the share in the form of a regular simple fraction.

Based on this rule, some courts overturn decisions of lower judicial bodies, in which the size of the share in the right to real estate is indicated as a percentage (resolution of the Fourth Arbitration Court of Appeal dated September 16, 2011 No. 04AP-3334/07).

As can be seen from the examples above, indicating in the contract the size of the share in the right of common ownership in the form of interest sometimes leads to legal disputes. Therefore, it is more expedient to indicate in the exchange agreement the size of the shares of participants in common shared ownership in the form of proper fractions.

There is also joint common ownership in the right of common ownership of real estate, when several people together and at their own discretion can use and dispose of the property that belongs to them on a trust basis. As a rule, joint ownership of real estate arises among spouses (Article 256 of the Civil Code of the Russian Federation) if it was acquired during marriage.

There is another option for joint ownership of real estate, which arises when living space is privatized by people living together, regardless of their family ties. The privatization agreement form contains a column that allows owners to determine what kind of ownership they want to transfer their property into: joint or shared.

How to count the votes of owners on the OSS

The counting of votes of owners at the OSS, as we wrote above, depends on the type of ownership of real estate. Let's consider the counting of votes at a general meeting when voting among participants in common joint and shared ownership.

Counting votes at OSS under common joint ownership

Participants in common joint ownership , unless otherwise provided by an agreement between them, jointly own and use common property (Part 1, 2, Article 253 of the Civil Code of the Russian Federation). Any of the owners can dispose of joint property with the consent of the others, regardless of which of the participants makes the transaction.

The courts believe that when counting votes at the OSS, the votes of all participants in the common joint property (by agreement between them) must be taken into account if at least one of them took part in the general meeting. Thus, one owner, on the right of common joint ownership, acts with the consent of all its participants. Therefore, his vote will be considered as 100% presence of the owners of a certain residential premises in the apartment building.

There is an excerpt from the Appeal ruling of the Samara Regional Court dated 04/11/2013 in case No. 33-3425/2013: “If the premises are in common joint ownership without determining the shares of several persons, then by agreement between them their interests are represented on the basis of a duly executed power of attorney one of the owners, who signs the voting ballot (sheet), or each owner.”

But if there is no agreement between the owners on the right of common joint ownership of real estate on the joint use and disposal of property or a properly executed power of attorney, then the vote of one owner cannot be counted in making a decision based on the entire area of ​​the apartment.

There is an excerpt from the ruling of the Moscow Regional Court dated January 12, 2012 in case No. 33-566/2012 (33-29450/2011: “From the case materials, it is clear that apartments: N are joint property, and one of the owners of these took part in the voting residential premises, despite this, his vote was counted based on the entire area of ​​​​the apartment. Meanwhile, the voting persons did not have agreements, agreements and contracts with each other on the management of common property, provided for in the provisions and Articles 244-247 of the Civil Code of the Russian Federation, as well as those who voted the apartment owners did not have powers of attorney from other owners, and therefore, according to the well-founded conclusions of the court, the votes participating in the voting were less than 50%.

Counting votes at OSS with common shared ownership

When counting the votes of participants in common shared ownership, the number of votes of these owners must correspond to their shares in the right to living space. For example, the living space is 45 sq.m. and only one of the owners with a ⅓ share of this premises in the apartment building voted on the OSS. Then this owner has only 15 votes, which must be taken into account when counting the votes.

For example, the Saratov Regional Court, in its appeal ruling dated July 27, 2012 No. 33-3710, came to the conclusion that due to the lack of a quorum, the OSS was declared invalid for choosing a method of managing an apartment building. The court also referred to the fact that some voting participants are the owners of only 1/2 shares in the right of common shared ownership of living space in the house. But, as it turned out, when counting votes at the OSS, their votes were counted without taking into account shared ownership. This is not legitimate and is incorrect.

Another judicial precedent established that when counting votes at the OSS of the owners of several residential premises, their votes were taken into account as the sole owners of residential premises in the house . But according to Rosreestr, these apartments were in common shared ownership. At the same time, the remaining participants in the common shared ownership in the specified residential premises did not take part in the voting.

Based on the foregoing, the court came to the conclusion that the votes of these persons when calculating the results of the OSS voting should have been taken into account in proportion to the shares of the voting owners in the right of common shared ownership of the living space (appeal ruling of the Murmansk Regional Court dated August 15, 2012 in case No. 33-2032).

Summary

Therefore, it is very important to correctly count the votes of the results of the general meeting of owners . The presence of a quorum at the meeting or its absence directly depends on this. Consequently, the outcome of the general meeting of owners also depends.

That is why we recommend that management organizations check documents confirming the ownership of real estate before the general meeting and enter this data into the register of OSS participants. Then you will know exactly what percentage of votes to take into account based on the area of ​​a particular room. And there will be no claims against you from the owners or regulatory authorities. The meeting and the decisions made at it will be absolutely legitimate.

Rights of the OSS initiator

The initiator of the general meeting of owners in an apartment building has the right (clause 6 of section IV of the Order of the Ministry of Construction of the Russian Federation dated July 31, 2014 No. 411/pr):

• identify all owners of premises in apartment buildings;
• determine the shares of each owner of premises in the house;
• determine the share of each owner in the common property of the apartment building;
• pre-interview owners;
• determine candidates for the chairman of the general meeting, secretary, counting commission.

Source: RosKvartal® - Internet service No. 1 for management organizations

Making decisions on agenda items

The presence of a quorum at a meeting does not guarantee that a decision on each item on the agenda will be made.

To resolve some issues, a majority of votes from the total number of votes of the owners taking part in the meeting is sufficient, that is, 50% of the total number of votes of all owners in the house + 1 vote is sufficient, provided that the meeting has a quorum.

To make decisions, for example, related to the overhaul of apartment buildings, a number of votes of at least 2/3 of the total number of votes of the owners is required, therefore the number of meeting participants to ensure a quorum may be insufficient to make decisions on such issues.

Another example is the appeal ruling of the Sverdlovsk Regional Court No. 33 – 4482/2020

In the Sverdlovsk region, Energetik 2 LLC initiated a general meeting of owners in the house. It was decided to terminate the management contract with UnivercomSever 3 LLC and select Energetik 2 LLC as the managing organization. The court, following a claim by one of the owners, declared the decisions of the meeting invalid.

Energetik 2 LLC stated in its complaint that, according to the register of licenses, during the period of the meeting it was the company that managed the apartment building, and therefore could initiate the general meeting. However, the appellate instance did not take into account the contents of the register of licenses, but the fact that even before the meeting, the courts in another case decided that the management agreement with Energetik 2 LLC was subject to termination. Then the decision of the meeting on this termination was challenged, and it was recognized by the court as valid.

Supermajority

A qualified majority is 2/3 of the votes. But not on the number of votes of the owners participating in the meeting, but on the number of votes in the entire house.

The following are accepted by a qualified majority (Part 1 of Article 46 of the RF Housing Code):

• Decisions on the common property of apartment buildings: on the limits of use of the land plot on which the house is located, including the introduction of restrictions on use (clause 2, part 2, article 44 of the Housing Code of the Russian Federation). To resolve this issue, it is necessary to find out whether the land plot located under the MKD, including the local area, has been registered in the cadastral register. Decisions on the use of memory can only be made in this case;
• on the use of common property by other persons - for example, in order to install advertising structures, banners, etc. (clause 3, part 2, article 44 of the Housing Code of the Russian Federation);
• on the determination of persons who, on behalf of the owners of premises in the house, are authorized to enter into agreements for the use of common property, while the conditions for leasing common property are determined at a general meeting (clause 3.1, part 2, article 44 of the Housing Code of the Russian Federation).

What reconstruction is is defined in Part 1 of Art. 14 Civil Code of the Russian Federation. This is “a change in the parameters of capital construction projects, their parts... (height, number of floors, area, production capacity indicators, volume) and the quality of engineering support.” This is its height, number of floors, area, etc. Reconstruction or redevelopment of a residential premises is not the same as reconstruction. It does not require a meeting of owners.