“You should come to terms with the fact that all decision-making is doubtful, because it is in the order of things that, having avoided one trouble, you find yourself in another.”
. Machiavelli N.
As follows from reviews of the practice of considering cases by courts, the number of claims to invalidate decisions of general meetings of owners of apartment building premises increases every year.
On the “Burmistr.ru” forum, the topic “Challenging the OSS” has exceeded 14 pages and is regularly discussed. The positions of the courts on appealing decisions of general meetings of owners of apartment buildings in different regions are different, since in conditions of legal uncertainty on many issues the court is guided by its internal conviction.
In accordance with Part 6 of Art. 46 of the Housing Code of the Russian Federation, the owner of a premises in an apartment building has the right to appeal in court a decision made by a general meeting of owners of premises in a given building in violation of the requirements of the Housing Code, if he did not take part in this meeting or voted against such a decision and if by such a decision his rights and legitimate interests were violated. An application for such an appeal may be filed with the court within six months from the day when the specified owner learned or should have learned about the decision.
How is the general meeting of owners held?
The procedure for conducting OSS of apartments located in a multi-storey building is recorded in Article 45 of the Housing Code of the Russian Federation.
Let's consider the algorithm for preparing and conducting this event.
- Determining the meeting organizer. If the owners of apartments in a new building plan to meet for the first time, then the initiator can be any owner/group of owners. The annual meeting will be prepared by the initiative group elected at the primary meeting.
Extraordinary meetings of residents can be held at the request of each owner in an apartment building - this follows from Part 2 of Article 45 of the Housing Code of the Russian Federation. Also, a management company can act as an organizer - only the one that maintains the house. In this case, the agenda may include issues within the competence of the general meeting of premises owners.
According to Part 6 of Article 45 of the Housing Code of the Russian Federation, owners with at least 10% of the votes have the right to contact the organization servicing the house with a request to hold a general meeting. The management company, in turn, is obliged to hold a meeting within 45 days.
In some cases, the OSS has the right to convene a local government body (for example, if it is necessary to resolve the issue of how to manage a high-rise building - Part 6 of Article 161 of the Housing Code of the Russian Federation).
- Preparation and collection of documents necessary for conducting the OSS. The organizer will need:
- event notifications;
- register of premises owners;
- owner resolution forms;
- registration sheets.
- Notifying premises owners about the event. Each owner of residential and non-residential premises is notified at least 10 days in advance. The requirements for the content of the message are set out in Part 5 of Article 45 of the RF Housing Code. Methods of notification can be different, from sending a registered letter to each owner and ending with posting relevant information on information boards in the entrances of houses.
- Conducting OSS. The meeting can be held in person, in absentia and in absentia format. The general rule is this: the meeting has the right to resolve issues raised only if owners with at least 50% of the votes take part in it.
But there are exceptions. For example, when transferring residential premises to non-residential premises, owners with at least 2/3 of the votes must be present at the meeting (if there is only one entrance). If there are several entrances, the meeting must be attended by residents who have at least 50% of the votes in the entire building, including citizens who have 2/3 of the votes in a specific entrance.
A decision is considered adopted if a majority of votes are cast for it.
- Summing up the meeting. Within 10 days from the end of the meeting, a protocol is drawn up, the requirements for which are contained in Order of the Ministry of Construction of the Russian Federation dated January 28, 2019 No. 44/pr. Residents of the house are notified of the decision made no later than 10 days from the date of registration of the protocol. Next, all documents are transferred to the company servicing the high-rise building.
Who has the right to initiate an OSS?
According to the current edition of the Housing Code of the Russian Federation, the following have the right to initiate an OSS:
- every registered occupant;
- district engineering services (if the house has property owned by the municipality);
- local authorities;
- Management company or other organization (homeowners association and others) that is responsible for the building.
Attention: to successfully organize a meeting, it is recommended to create an initiative group, which includes several owners.
The timing of the OSS is set by the residents. By law, a meeting of residential property owners is organized annually, from April to June. However, owners have the right to request the appointment of an extraordinary OSS at any convenient time.
Who can challenge the decision of the general meeting?
Challenging the decision of the general meeting of owners of an apartment building is possible by a resident of this high-rise building if two conditions are met simultaneously (Part 6 of Article 46 of the Housing Code of the Russian Federation):
- the citizen was not at the OSS and did not vote/speak against the decision;
- the controversial decision affects his rights and interests.
Other residents also have the right to join the claim before the final act is issued. If you ignore this possibility, the owners will subsequently lose the right to file a similar claim in court.
Who else can appeal the decision of the general meeting of owners? Article 20 of the Housing Code of the Russian Federation gives the opportunity to challenge the decision also to the bodies of State Housing Supervision and Municipal Housing Control. As for the management organization, it is deprived of this right.
List of problems for OSS
At such a meeting of residents, decisions are made on the following problems:
- redevelopment of internal premises;
- rules for the formation (procedure for making contributions, appointment of a manager, etc.) of the capital construction fund and conditions for withdrawing funds from the FCP;
- conditions for carrying out repair work (including major repairs) or reconstruction of the building;
- conditions and purposes of obtaining borrowed funds on behalf of the HOA (other management company) for major repairs;
- arrangement of the local area;
- signing agreements for the installation of advertising banners on the facade of the house;
- determining the terms of contracts with suppliers of energy and other resources.
Owners have the right to raise other issues related to the life and operation of the house. Every issue considered at the general meeting must affect all residents. This means that the OSS is not appointed to carry out major repairs in the apartment.
Who will be liable for the claim?
The defendants are the citizens or legal entities that initiated the general meeting or the persons who led it.
However, if it is established that the citizen who allegedly initiated the meeting did not know anything about it, and his signature in the protocol was forged, it is permissible to bring the managing organization as a defendant. But only if, as a result of the decision, she was endowed with new rights and responsibilities in relation to the residents of the high-rise building.
List of requirements for the OSS protocol
The protocol reflects the final voting results. Therefore, strict requirements are imposed on this document. The protocol is drawn up strictly according to the model. This document reflects the form and type of meeting of owners, the name of the person who acted as the initiator. Additionally, information about the persons present at the event is provided.
This is mandatory information that the protocol must contain. The document also provides data on the total area of the house and the size of the apartments of each of those present. The lower part is reserved for lists of questions and answers. If necessary, indicate a list of attached documents (power of attorney for representation of interests or others).
The protocol must reflect the date and time of the OSS, the place of collection (address of an apartment building). The document is signed by the chairman and the secretary. Other persons do not have the right to make notes in the protocol.
Protocol example
At the top of the minutes, information is usually provided (in that order) about the date and location of the meeting, the chosen form of the event, and the name of the person who initiated the procedure.
The following is information about the chairman and secretary. If necessary (if selected), information about members of the counting commission and invited persons is provided. Below is a list of questions that were discussed at the general meeting and the answers.
In what cases can a decision of the OSS not be challenged?
Based on the provisions of clause 2 of Article 181.4 of the Civil Code of the Russian Federation, it will not be possible to annul a decision made in violation of procedural aspects if the general meeting subsequently adopted a similar decision, but in accordance with all established rules. An important nuance is that a later decision must be made before the court issues the corresponding final act.
In addition, according to paragraph 4 of the article in question, the decision remains in force in the presence of two circumstances:
- even if the plaintiff took part in the procedure, his vote would not have influenced the final decision;
- the decision made does not carry significant adverse consequences for the citizen (he did not suffer losses, did not lose the opportunity to benefit from the use of common property, did not lose the ability to participate in the social security system, etc.).
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How to determine the quorum of a contested meeting?
To determine quorum, you must:
- Find out the square footage of residential and commercial premises in the house. You can obtain the necessary information, for example, on the GIS Housing and Public Utilities website or from the technical passport of an apartment building.
- Calculate how much space is occupied by the people attending the meeting.
- Divide the area of premises owned by the participants by the total area of residential and non-residential premises, and then multiply the resulting value by 100%. Please note: the area of premises belonging to the common property of the house is not taken into account.
If the final figure does not exceed 50%, then there was no quorum and the meeting could not resolve any issues.
In some cases, ballots should not be counted in the vote count. For example, a document is not subject to registration if it does not contain information about the title documents of a specific person taking part in voting (requirement of clause 2, part 5.1, article 48 of the RF Housing Code).
The absence of a submission date on a ballot does not in itself mean that it should not be taken into account when counting votes. In this case, the court invites the participants to submit additional evidence. Residents of a high-rise building may be summoned to court proceedings to give their explanations as witnesses.
Claim to invalidate the minutes of the general meeting
As we have already found out, the interested party needs to file a claim to challenge the decision of the general meeting of owners, and not to invalidate the minutes. As for the requirements for the form and content of the claim, they are fixed in Article 131 of the Code of Civil Procedure of the Russian Federation. The structure of the application is as follows:
- Introductory part. Here the plaintiff indicates his full name, his registered address, contact information, and also provides similar information about the defendant. It is necessary to indicate the name of the court to which the application will be filed and its address. Don’t forget to write the title of the claim (“On invalidating the decision of the general meeting of premises owners”).
- Motivational part. In this part of the claim it is necessary to indicate when, where and in what format the meeting took place, who initiated it, what issues were put on the agenda. The plaintiff must list the violations committed (in his opinion) during the meeting. Article 181.4 of the Civil Code of the Russian Federation states what, in particular, may become the reason for the annulment of the OSS decision.
Support your arguments with references to current legislation.
- The pleading part. In it, the plaintiff formulates his demands on the defendant (in our case, to invalidate the decision of the OSS). You can also submit a claim for reimbursement of expenses incurred in going to court.
At the end of the claim there is a list of attached documents.
Sample statement of claim
To challenge the decision of the general meeting of owners, you need a statement of claim. The plaintiff can use a ready-made claim template to save effort and time. However, keep in mind that not all samples posted on the Internet can be trusted - many of them contain outdated information or are completely incorrect.
Therefore, check the regulations to avoid mistakes.
Where to apply?
The claim should be sent to the district court at the place of residence of the defendant-initiator of the meeting. Documents can be submitted through the office in person, sent by registered mail, or uploaded through the GAS Justice portal.
What documents will be needed?
To appeal the decision of the meeting of homeowners, you will need the following documents:
- state duty receipt;
- an extract from the Unified State Register of Real Estate on the plaintiff’s ownership of the premises in this high-rise building;
- documents confirming the fact of notification of other owners about plans to go to court;
- postal receipts confirming the fact that the claim and all documents were sent to the defendant;
- OSS protocol with all applications;
- other documents.
If the plaintiff lacks any documents, he can ask the court to assist in obtaining them.
Deadlines for appeal
The period for appealing the decision of the general meeting of owners is reduced and is, according to Part 6 of Article 46 of the Housing Code, six months from the date when the plaintiff became aware or should have become aware of the decision made (but no later than 2 years from the date when the information appeared in the public domain ). Therefore, it is recommended not to delay going to court.
Legal assistance in invalidating the minutes of the general meeting
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Let's sum it up
Here's what you need to remember before you go to challenge the OSS decision in court:
- A person challenging the decision of the OSS MKD must first inform the other owners of the premises in the house of his intention to file a claim in court. Otherwise, the claim will remain without progress.
- The defendant in a claim to invalidate a decision of an MKD meeting may be the initiators of the controversial meeting or the persons who led them.
- If the signature of the initiator of the OSS in the protocol is forged, the court will involve as a defendant the MA that received the house on the basis of the contested decision.
- OSS participants who voted for the decision can join the case as third parties without independent claims on the defendant’s side, and their opponents have the right to join the claim as a co-plaintiff until the decision is made.
- The subject of the challenge is the decisions taken, not the OCC protocol.
- If the ballot does not contain information about the document confirming the ownership of the premises in the apartment building, this is considered grounds for excluding such a ballot from the vote count.
- The court will invite the parties to provide additional evidence and discuss the issue of questioning the owners if it doubts that the ballots were submitted on time for the voting.
The procedure for challenging the decision of the OSS
We present an algorithm for appealing a decision of a general meeting of owners of an apartment building. Follow it to get a decision reversed that you are not happy with for one reason or another.
Obtaining and studying the OSS protocol
You can obtain the protocol on the GIS Housing and Communal Services website. Please read its contents carefully for possible violations. Quite often, various inconsistencies are discovered, including, for example, the participation of ordinary residents (not owners) in voting, inflating the areas of apartments in order to increase the number of votes of those participating, voting not according to the agenda, etc.
Notifying other owners of plans to go to court
Clause 6 of Article 181.4 of the Civil Code of the Russian Federation obliges a citizen to notify other owners of his intentions before filing a claim in court. Of course, you can send a separate letter to each owner: but if there are many apartments, this can be very expensive for the plaintiff. Therefore, it is cheaper and faster to place a corresponding notice on the notice board at the entrance of the house - the Plenum of the Supreme Court of the Russian Federation, in paragraph 65 of its Resolution No. 25 of June 23, 2015, allowed this to be done.
If the plaintiff does not fulfill this obligation, the judge will leave the application without motion.
Prepare a claim and submit it to court
We have already talked about how to prepare a claim and where to file it correctly. Before doing this, do not forget to send copies of documents to the defendant – the organizer of the OSS.
Take part in the trial
In order to be able to answer the court’s questions, present objections to the defendant’s arguments, and participate in the study of evidence, it is better for the plaintiff to take personal part in court proceedings. However, if a citizen does not have the time or desire to deal with this issue, he can enlist the support of a lawyer or lawyer.
The case must be considered within 2 months from the date the application was received by the court. However, the deadlines may be delayed, for example, due to the need to involve third parties in the process - the management company or other owners.
Challenge the court's decision if you are not satisfied with it
If the plaintiff is dissatisfied with the outcome of the trial, he can file an appeal within a month from the date of the final decision. The requirements for the complaint are set out in Article 322 of the Code of Civil Procedure of the Russian Federation. It is worth remembering that the complaint cannot state new demands or submit new documents. The plaintiff can only ask the appellate court to re-evaluate the previously presented evidence.
So, it is possible to appeal the decision of the OSS, but this is a very labor-intensive process that requires compliance with a number of rules.
Recommended reading:
What to do if the developer is late in delivering the house?
Summary
The general meeting of owners is a procedure within which issues affecting all residents are resolved (determining the procedure for carrying out repair work, etc.). The OSS is carried out once a year or at any time, at the request of one of the apartment owners, management company or other authorized organization.
Decisions made at the general meeting are reflected in the minutes, which are signed by the chairman and sent to the State Housing Inspectorate. This strict reporting document is filled out according to the sample. Owners have the right to challenge the decisions of the general meeting in court.
