Briefly about the main thing in a homeowners' association: the chairman of the board and his work risks

How and who elects the HOA board

Homeowners Association, in accordance with Part 2 of Art. 162 of the Housing Code of the Russian Federation, is one of three ways to manage an apartment building. Members of the partnership must be owners who have more than 50% of the total number of all votes in the house (Part 3 of Article 135 of the Housing Code of the Russian Federation).

The governing bodies of the HOA include the general meeting of the members of the partnership and its board (Article 144 of the Housing Code of the Russian Federation). The HOA board makes decisions on all issues of the partnership's activities that are not within the competence of the general meeting of owners or members of the HOA.

The HOA Board is elected at a general meeting of members of the partnership (hereinafter referred to as the PSC) for a period of no more than two years. The decision is documented in a protocol, which must be drawn up in accordance with the requirements of Order No. 44/pr, which apply to the minutes of general meetings of owners in MKD.

In some cases, the owners, having made a decision at a general meeting to create an HOA, immediately elect a board. But legally this issue is not within the competence of the OSS, which may cause the court to declare the HOA board and all decisions made by it illegitimate.

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The methods and timing of notification of PSD are usually similar to the requirements for PSC

The initiator of the general meeting of HOA members, as well as the initiator of the general meeting of owners, sends each member of the partnership by registered mail or delivers in person against signature a notice of the general meeting of members.

Other methods can be used if they were previously approved at the OSCh or are provided for by the Charter (Part 1 of Article 146 of the Housing Code of the Russian Federation). Participants of the meeting must be notified no later than 10 days before the day of the PSC.

The procedure and deadline for notifying members of a housing cooperative about holding a general meeting are not specified in the Housing Code of the Russian Federation. Most often, cooperatives operate according to the same scheme as HOAs and use the same methods of informing PSC participants. Also, the procedure and period of notification are prescribed in the Charter of the Residential Complex.

Who can be the chairman of the HOA board and how is he elected?

The chairman of the board is elected from among its members. This can be done by members of the partnership at a general meeting, if the Charter refers this to the competence of the PSC, or by elected members of the board (Part 3 of Article 147 of the Housing Code of the Russian Federation).

The chairman of the board of the HOA must be the owner of the premises in the house and be a member of the board of the association. It does not matter where he is registered: in the premises of the house of which he is the owner, or in another place or even a city.

In Part 3.1 of Art. 147 of the Housing Code of the Russian Federation lists persons who cannot be elected to members of the board of the HOA, and therefore cannot be the chairman of the board of the partnership:

officials of the organization or manager with whom a management agreement has been concluded;
HOA employees who have entered into an employment contract with the partnership;
members of the HOA audit commission.

Since the chairman of the board of the HOA must necessarily be the owner of the premises in the house or its share, members of the owner’s family registered in the apartment, including spouses or children, as well as employers and tenants, cannot be elected to this position.

These persons also cannot be members of the HOA board. Non-owners have the right to participate in the PSC of the partnership only as representatives of the owner of the premises on the basis of a notarized power of attorney from the owner.

Application in form P12001

It is filled out in the prescribed form (can be obtained from the tax office, or downloaded from the Internet) and contains :

applicant information;
how it is reorganized;
legal address;
OGRN;
TIN;
registration authority marks;
full name (only in Russian);
data on the share in the authorized capital;
information about an individual who has the right to act on behalf of the organization;
signatures.

The deed of transfer essentially contains all the information about what is being transferred, with what “baggage” and to whom, under what conditions. In addition, data on assets and liabilities, as well as debts (if any), must be indicated.

Moreover, it should be remembered that tax authorities have the right to reject a request for reorganization if the mentioned document is not submitted.

It is necessary in order to avoid future litigation on the topic of who has more property rights or who has to pay existing debts.

Read our article about how to re-elect the chairman and governing bodies of the HOA.

What powers does the chairman of the HOA board have?

The moment the chairman’s powers arise is the decision to be elected to the position. It is from the day when, by the minutes of the PSC/board meeting, the owner is elected to the position of chairman, he receives the powers listed in Art. 149 Housing Code of the Russian Federation.

Chairman of the Board of the Homeowners Association:

signs documents and agreements, if this does not require the approval of the board or the PSC of the partnership;
signs powers of attorney to represent the interests of the HOA, including in a court of general jurisdiction;
draws up and submits claims and claims on behalf of the partnership;
acts as a representative of the HOA in interaction with supervisory and control authorities.

The beginning of the powers of the chairman of the HOA is in no way connected with the date when an employment contract was concluded with him or the corresponding entry about the HOA was made in the Unified State Register of Legal Entities. Also, the chairman does not need a power of attorney to work, which is enshrined in Part 2 of Art. 149 Housing Code of the Russian Federation.

The term of office of the elected chairman of the HOA board is determined by the Charter of the partnership and, as a rule, does not exceed two years. It is important to remember that the expiration of the established period does not automatically terminate the activities of the chairman.

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What is the difference from the chairman?

Many people confuse the positions of chairman of a partnership and manager. In fact, these are two completely different positions that cannot even intersect.

The chairman is the head of the HOA, who deals with organizational and legal issues, as well as financial issues, analyzes the decisions and wishes of residents, and also makes his own adjustments and initiatives. His activities are administrative.

As for the manager, his activities are also related to administrative work , however, he rather exercises control over the activities of hired workers, does not introduce any initiatives, but assists in increasing the functionality of the work of the partnership’s employees.

In addition, he submits to the chairman as an employee to the employer, undertakes to comply with the internal regime and not violate it without good reason.

You can find a sample job description for an HOA manager.

When and who can remove the powers of the chairman of the HOA board?

The chairman of the HOA board terminates his activities in this position in the following cases:

At the PSC of the partnership, a decision was made to elect a new chairman (clause 3, part 2, article 145 of the Housing Code of the Russian Federation).

If at the meeting the members of the HOA decided to terminate the powers of the current chairman, but did not choose a new one, then the first one continues his work until another member of the board of owners of the association of owners is elected to this position.

Early termination of the chairman’s powers occurs if there are serious grounds, including the person’s inability to conduct business properly or gross violations in the performance of duties (paragraph 2, part 2, article 123.14 of the Civil Code of the Russian Federation).

The person elected as the chairman of the HOA has lost the right of ownership to the premises in the apartment building where this partnership was created (Part 3 of Article 143 of the Housing Code of the Russian Federation).

This fact is confirmed by judicial practice: the resolution of the Fourteenth AAS dated July 29, 2013 in case No. A44-4579/2012, the decision of the Arbitration Court of the Tyumen Region dated December 11, 2013 in case No. A70-11284/2013.

Court decisions state that from the moment of loss of the status of the owner of the premises in the house, a person can no longer be the chairman of the HOA due to mandatory provisions of the law, therefore, cannot represent the interests of the partnership in civil legal relations.

What can the chairman of the HOA board be held accountable for?

The owner, elected chairman of the board of the HOA, is responsible for the activities of the partnership: administrative and civil law.

Administrative liability for the chairman of the HOA as an official occurs if the supervisory authority identifies violations committed during the management of an apartment building. This is enshrined in clause 42 of the RF PP No. 491, and is also stated in clause 15 of the resolution of the Plenum of the RF Armed Forces dated March 24, 2005 No. 5.

According to judicial practice, the chairman of the board of a homeowners' association can be held accountable for violating the rules for maintaining and repairing the common property of the house (Article 7.22 of the Code of Administrative Offenses of the Russian Federation), failure to comply with the requirements of the prosecutor (Article 17.7 of the Code of Administrative Offenses of the Russian Federation) and the Civil Housing Inspectorate (Part 24 of Article 19.5 of the Code of Administrative Offenses of the Russian Federation) , violation of the pricing procedure (Part 2 of Article 14.6 of the Code of Administrative Offenses of the Russian Federation), labor legislation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation) and on other grounds.

Errors, unlawful actions or inaction of a person during the period of his work as the chairman of the board of the HOA may also entail civil liability for them: for example, compensation for losses to the partnership that were caused by the actions/inaction of the chairman of the board (Article 15, 53.1 of the Civil Code of the Russian Federation).

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Positive judicial practice for HOAs

The Belgorod Regional Court considered the claim of the owner in the HOA, in which the resident referred to the lack of information on the official website of the partnership. Previously, the prosecutor's office refused to satisfy the owner's demands and bring the chairman of the HOA to administrative responsibility under Art. 5.39 Code of Administrative Offenses of the Russian Federation.

The court concluded that the lack of information on the website violates the legislation on the disclosure of information by organizations engaged in managing apartment buildings. There were no signs of unlawful refusal to provide information. Therefore, the court decided not to hold the chairman of the HOA liable under Art. 5.39 Code of Administrative Offenses of the Russian Federation.

Also, the court explained that in accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, the owner may be refused consideration of the case if he does not provide sufficient evidence of his appeal to the HOA with a request to familiarize himself with the documents.

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Important to remember

The chairman of the board of the HOA is elected by the board or the general meeting of members of the partnership, if this is stated in the Charter, for a period of no more than two years. From the moment of drawing up the minutes of the meeting at which the official was elected, the chairman receives the powers specified in Art. 149 Housing Code of the Russian Federation and the HOA Charter.

Only the owner of the premises in the house and a member of the board can become the chairman of the board of the HOA, and it does not matter whether he is registered in this premises. But members of his family, as well as tenants, do not have the right to apply for this position.

Since the chairman of the board of the HOA is an official, he can be brought to both administrative and civil liability for violations in the work of the owners’ association.

All these questions were covered in detail, with examples, during the online seminar “Problems in the work of HOAs and ways to solve them, instructions”, which our expert Susana Kirakosyan conducted in April 2019. Materials from this seminar are posted here.

Required papers

What documents are needed for this:

charter of the new organization;
minutes of the decision of the general meeting;
state duty receipt;
application for registration of a new person as a result of reorganization No. P12001;
deed of transfer.

Read our article about the procedure for making contributions to the HOA.