The general meeting of owners of premises in an apartment building , in accordance with Part 1 of Article 44 of the Housing Code of the Russian Federation, is recognized as the management body of the house. The general meeting is held so that the management company, together with the property owners, can discuss a number of topical issues and problems on the agenda by voting and making decisions.
The general meeting of homeowners can be held in three forms (Article 44.1 of the Housing Code of the Russian Federation):
- in-person voting - in the presence of owners of premises in the house to discuss issues on the agenda and make decisions on issues put to vote;
- absentee voting - by means of a questionnaire, if the meeting in person did not take place due to lack of quorum (Part 1 of Article 47, Article 47.1 of the Housing Code of the Russian Federation).
- in-person and absentee voting - using the GIS housing and communal services system (Part 3 of Article 47 of the Housing Code of the Russian Federation). The decision to use the GIS Housing and Public Utilities when conducting the OSS in the form of absentee voting is made by the general meeting of premises owners (Clause 3.2, Part 2, Article 44, Part 1, Article 47.1 of the Housing Code of the Russian Federation).
In-person and absentee voting
When and why is it necessary to conduct an OSS in the form of in-person and absentee voting of owners ? After all, for this there are separate forms of in-person and absentee voting. The thing is that both of these forms do not always bring results, since often there is simply not a quorum to make important decisions at the general meeting of homeowners.
In-person and absentee voting combines both forms of conducting an OSS and allows you to discuss issues on the agenda in person and make decisions on them, as well as transfer decisions of homeowners by absentee voting within the prescribed period to the address specified in the notice of the event (Part 3 Article 47 of the Housing Code of the Russian Federation). Read more about this in our article.
This is convenient because if during the in-person voting there was not a quorum to make decisions on the issues on the agenda, then it can be achieved through absentee voting. Particularly relevant is the in-person and absentee form of voting by homeowners when considering agenda items on which decisions are required by 2/3 of the votes of the owners of premises in the apartment building (clauses 1.1-1, 1.2, part 2, article 44 of the Housing Code of the Russian Federation).
How to hold a general meeting of premises owners in an apartment building?
Lawyer Antonov A.P.
The general meeting of owners of premises in an apartment building is the management body of the apartment building. It is held for the purpose of managing an apartment building by discussing agenda items and making decisions on issues put to vote. Persons who have accepted the premises in this house from the developer under a transfer deed or other transfer document (Part 1, 1.1 of Article 44 of the Housing Code of the Russian Federation) can participate in the general meeting of premises owners within a year from the date of issuance of permission to put the house into operation. A general meeting of owners can be held (clause 9 of article 2, clause 3.2 of part 2 of article 44, article 44.1, part 1, 3 of article 47, article 47.1 of the Housing Code of the Russian Federation; clauses 1.1, 1.2 , 1.3 of the Procedure, approved by Decree of the Moscow Government dated 02/27/2018 N 115-PP; clauses 6.1.2, 6.1.3 of the Rules, approved by Decree of the Moscow Department of Information Technologies dated 02/27/2018 N 64-16-87 /18): in person (with the joint presence of the owners of premises in a given building to discuss issues on the agenda and make decisions on issues put to vote); in the form of absentee voting (by poll or using information systems). At the same time, in order to use the GIS “Housing and Communal Services” or regional information systems (for example, in Moscow - the information system of the “Active Citizen” project or other information systems that can be accessed through the Moscow Public Services Portal), it is necessary for the owners to make an appropriate decision in in the case of direct management of apartment buildings by premises owners. To use other information systems, it is necessary for the owners to make a decision, regardless of the method of managing the apartment building. Absentee voting (by poll) can also be carried out if the meeting in person did not have a quorum; in the form of absentee voting (the possibility of in-person discussion of agenda items and making decisions on issues put to vote, as well as the possibility of transferring decisions of owners within a specified period to the place or address indicated in the notice of holding a general meeting of owners of premises in an apartment building home). The general meeting of owners of premises in an apartment building is valid (has a quorum) if the owners of premises in the building or their representatives with more than 50% of the total number of votes took part in it. An exception is the meeting (Part 3, 3.2 of Article 45 of the Housing Code of the Russian Federation): on the issue of transferring residential premises to non-residential premises, which has a quorum if the owners of the premises or their representatives with more than 50% of the total number of votes took part in it, including owners of premises located in the same entrance as the premises being transferred, who have more than 2/3 of the total number of votes of such owners (if there is more than one entrance in the house). If the house has one entrance, such a meeting has a quorum if the owners of the premises or their representatives with more than 2/3 of the total number of votes took part in it; on the issue of including an apartment building within the boundaries of a residential development territory subject to integrated development, as well as on the exclusion of an apartment building from the boundaries of the specified territory, from the draft decision (from the decision) on the integrated development of a residential development territory, which has a quorum if the owners took part in it residential premises or their representatives holding more than 50% of the votes of the total number of votes of the owners of residential premises. At the same time, in relation to residential premises provided under social tenancy agreements or under lease agreements for residential premises of the housing stock for social use, the representatives of the owners are the tenants of such premises. When calculating the quorum, persons who have accepted premises in a given house from the developer under a transfer deed or other transfer document are also taken into account, who can take part in the meeting within a year from the date of issuance of permission to put the apartment building into operation (Part 1.1 of Article 44 of the Housing Code of the Russian Federation ; Letter of the Ministry of Construction of Russia dated February 26, 2020 N 5607-OG/04). To hold a general meeting of premises owners in an apartment building, we recommend following the following algorithm.
Step 1. Initiate a general meeting of owners. The annual general meeting of owners of premises in an apartment building is held annually, during the second quarter of the year following the reporting year, unless otherwise established by the general meeting of owners (Part 1 of Article 45 of the Housing Code of the Russian Federation). In addition to the annual general meeting, the owners of premises in an apartment building can hold extraordinary general meetings (Part 2 of Article 45 of the Housing Code of the Russian Federation). An extraordinary general meeting can be convened: at the initiative of any of the owners (Part 2 of Article 45 of the Housing Code of the Russian Federation); at the initiative of the board of the HOA (if an HOA has been created in the house) (clause 8 of Article 148 of the Housing Code of the Russian Federation); at the initiative of the management organization (part 7 of article 45 of the Housing Code of the Russian Federation); management organization, HOA, housing complex, housing cooperative, other specialized consumer cooperative upon a written request from owners holding at least 10% of the total number of votes of the owners of premises in an apartment building (Part 6 of Article 45 of the Housing Code of the Russian Federation); on the initiative of an authorized body of state power or local government that has prepared a draft decision on the integrated development of a residential territory, or a legal entity designated by the Russian Federation or a constituent entity of the Russian Federation to implement such a decision - on the issue of including a house within the boundaries of the specified territory (Part 2.1 of Article 45 Housing Complex of the Russian Federation).
Step 2. Prepare for the general meeting of owners. At this stage, you should formulate the agenda for the general meeting of owners and decide on the form of voting. When voting in person or in absentia, it is necessary to select the time and place of the meeting to discuss the agenda items, select candidates for the chairman, secretary, and members of the counting commission. In addition, it is necessary to prepare an information message about the holding of a general meeting of owners, a register of owners, forms of decisions on issues put to vote, protocol forms (parts 4, 5 of article 45, part 1 of article 46 of the Housing Code of the Russian Federation; clauses. 3, 4, 20 Requirements, approved by Order of the Ministry of Construction of Russia dated January 28, 2019 N 44/pr). In the case of holding the first general meeting of owners in absentia using the GIS "Housing and Communal Services", the powers of the administrator of the general meeting are exercised by its initiator. To conduct subsequent general meetings in absentia using the specified system, the agenda includes questions about determining the administrator of the general meeting, the procedure for receiving messages about general meetings, decisions of owners on issues put to vote, as well as the duration of voting on agenda items days (part 2.1 of article 47.1 of the Housing Code of the Russian Federation).
Step 3. Notify the owners about the general meeting. Each owner of premises in an apartment building should be notified no later than 10 days before the date of the general meeting. Depending on what method of informing was previously established by the general meeting, you can place the relevant information in publicly accessible places, deliver a notification against signature to each owner, or send it by registered mail (part 4 of article 45, part 5 of article 47.1 of the Housing Code of the Russian Federation). When using an information system to hold a general meeting of owners, a message about the meeting is posted by the administrator in this information system, and is also sent to each owner of the premises in the apartment building. In addition, in the case of holding the first general meeting of owners using the GIS "Housing and Communal Services", it is necessary, in particular, to inform the owners of the premises about the procedure for submitting a written refusal to hold such a meeting, as well as about the rules for access to the system for persons not registered in it (clause p. 4.7, 4.10, 4.11 of the Rules; part 5 of article 47.1 of the Housing Code of the Russian Federation). The notice of the general meeting must contain information about the initiator of the general meeting, the form, date, place and time of the meeting, the agenda, the procedure for familiarizing with the information and materials that will be presented at the meeting, as well as the place or address where they can be accessed familiarize. If a general meeting is held in the form of absentee voting, the message indicates the end date for accepting decisions of the owners, the place or address where such decisions should be transferred (Part 5 of Article 45 of the Housing Code of the Russian Federation). At the same time, the first general meeting in absentia using the GIS “Housing and Communal Services” cannot be held if the administrator of the general meeting receives information about the presence of written refusals to hold this meeting of owners holding more than 50% of the votes of the total number of votes of the owners of the premises (Part. 2.1, 5, Article 47.1 of the Housing Code of the Russian Federation).
Step 4. Hold a general meeting of owners. The number of votes that each owner has is proportional to his share in the right of common ownership of the common property in the house and is fully taken into account when summing up the voting results. Voting as part of the votes belonging to the owner is not provided for by law (Part 3 of Article 48 of the Housing Code of the Russian Federation; Clause 1 of the Letter of the Ministry of Construction of Russia dated October 5, 2017 N 35851-EC/04). If the meeting is held in person, all owners of premises present at the meeting must be registered. If there is a quorum, you can begin to consider the issues included in the agenda, having previously elected the chairman and secretary of the general meeting, as well as members of the counting commission. The General Meeting does not have the right to make decisions on issues not included in the agenda, or to change the agenda of the meeting (Parts 1, 2, Article 46 of the RF Housing Code; clauses 12, 13, 15 of Requirements No. 44/pr). If the meeting is held in absentia, the owners submit voting forms on time and to the address indicated in the notice of the general meeting, or directly vote electronically using the information system (Part 1, Article 47, Part 6, Art. 47.1 Housing Code of the Russian Federation; clause 5.3 of the Rules). If the meeting is held in the form of in-person and absentee voting, then the meeting participants must have the opportunity to discuss the issues on the agenda and submit voting forms within the prescribed period to the place or address indicated in the notice of the general meeting (Part 3 of Article 47 of the Housing Code of the Russian Federation ). As a general rule, decisions of the general meeting of owners on issues put to vote are adopted by a majority vote of the total number of votes of the owners participating in this meeting (Part 1, Clause 2, Part 1.2, Article 46 of the Housing Code of the Russian Federation). The exceptions are (clauses 1, 1.1, 1.1-1, 1.2, 2, 3, 3.1, 4.2, 4.3, 4.5, 4.6, part 2, article 44, part 1, clause 1, part 1.2, part. 1.3 Article 46, Part 1 Article 136 of the Housing Code of the Russian Federation): decisions taken by more than 50% of the total number of votes of owners of premises in apartment buildings on the choice of method for forming a capital repair fund, the choice of a person authorized to open a special account and carry out transactions with funds located on it, on granting the council of the apartment building the authority to make decisions on the current repair of common property in the apartment building and decisions on the creation of a homeowners association in one apartment building; individual decisions made by a majority of at least two-thirds of the total number of votes of the owners of premises in an apartment building, for example, decisions on the reconstruction of an apartment building, on the construction of outbuildings and other buildings, structures, structures, on the reconstruction and (or) redevelopment of premises included into the composition of the common property of the apartment building, on the limits of use of the land plot on which the apartment building is located, on the use of the common property of the owners of premises in the apartment building by other persons; decisions on consent to the transfer of residential premises to non-residential premises if there is more than one entrance in the house, adopted by a majority vote of the total number of votes of the owners taking part in the meeting, subject to voting for the adoption of this decision by the owners of premises located in the same entrance with the transferred premises, having a majority of votes from the total number of votes of such owners; a decision on the inclusion of an apartment building within the boundaries of a residential development area subject to integrated development, in accordance with the draft relevant decision, adopted by at least two-thirds of the votes of the owners of residential premises or their representatives from the total number of votes of the owners of residential premises; a decision on the exclusion of an apartment building from the boundaries of the residential development territory subject to integrated development, and from the draft corresponding decision, adopted by at least one-third of the votes of the owners of residential premises or their representatives from the total number of votes of the owners of residential premises. Regardless of the form of voting (in-person, in-person, absentee or absentee), the owner’s decision on issues put to vote must indicate (Part 5.1, Article 48 of the RF Housing Code; Clause 5 of Letter N 35851-EC/04): 1) information about the person participating in voting, providing the opportunity to identify the specified person, including full name. (the latter - if available) completely; 2) information about the document confirming the ownership of the person participating in the vote to the premises in the corresponding apartment building; 3) decisions on each item on the agenda, expressed in terms of “for”, “against” or “abstained”.
Step 5. Document the voting results. The decision of the general meeting of owners of premises in an apartment building is documented in minutes. The minutes of the general meeting are drawn up in writing within the time limits established by the general meeting, but no later than 10 calendar days from the date of the general meeting (part 1 of article 46 of the RF Housing Code; clause 2 of Requirements No. 44/pr). The minutes of the general meeting should indicate the name of the document, the date and number of the minutes, the date, place of the general meeting, the title to the content of the minutes, the content of the minutes (in particular, the agenda, the competence of the general meeting (the presence or absence of a quorum), the number of votes on each issue), information about the place (address) of storage of protocols and decisions of premises owners on issues put to vote. If the content of the protocol contains an indication of the presence of proposals, the documents listed in it are attached to the protocol. As a general rule, the protocol is signed by the chairman, secretary of the meeting and the persons who counted the votes (clause 4, Section II of Requirements No. 44/pr). The person on whose initiative the general meeting was convened must submit the originals of the decisions and minutes of the general meeting of premises owners to the management organization, the board of the HOA, housing complex, housing cooperative, other specialized consumer cooperative, in the case of direct management of apartment buildings - to the housing supervision authority, and in in certain cases, to the resource supplying organization, regional operator for the management of municipal solid waste - copies of decisions and minutes of the meeting no later than 10 calendar days after the holding (end) of the general meeting (part 1 of article 46 of the Housing Code of the Russian Federation; clause 4 of the Procedure, approved By Order of the Ministry of Construction of Russia N 44/pr).
Note! In order to prevent the spread of coronavirus infection (COVID-19), the deadline for sending original decisions and protocols may be extended until the relevant restrictions are lifted in the constituent entity of the Russian Federation (Letter of the Ministry of Construction of Russia dated 04/07/2020 N 10966-OG/04).
In Moscow, the body of state housing supervision is the Moszhilinspektsiya (clause 1 of the Regulations, approved by Resolution of the Moscow Government of July 26, 2011 N 336-PP). The state housing supervision body, if within three months in a row it receives two or more minutes of the general meeting of owners of premises in an apartment building, containing decisions on similar issues on the agenda, is obliged to conduct an unscheduled inspection in order to establish the fact of compliance with legal requirements when organizing, holding and registration of the results of such a meeting (Part 1.1 of Article 46 of the Housing Code of the Russian Federation).
Step 6. Inform all owners about the voting results and decisions made. The voting results and decisions made at the general meeting are brought to the attention of the owners of the premises in the house by the initiator of the meeting no later than 10 days from the date of adoption of these decisions. The message is posted in the premises of the house, determined by the decision of the general meeting of owners and accessible to all owners (Part 3 of Article 46 of the Housing Code of the Russian Federation). Decisions of the general meeting in the form of absentee voting conducted using the information system are automatically generated in the form of a protocol and posted in this system within an hour after the end of voting (Part 11, Article 47.1 of the Housing Code of the Russian Federation; Clause 3.30 of Procedure No. 115-PP).
Note! The decision of the general meeting of owners, adopted in the prescribed manner, on issues within the competence of such a meeting, is mandatory for all owners of premises in an apartment building, including those who did not participate in the vote (Part 5 of Article 46 of the Housing Code of the Russian Federation) .
Step 7. Appeal the decision of the general meeting (if necessary) An owner who did not take part in the voting or voted against the decision, who believes that this decision violated his rights and legitimate interests, has the right to appeal to the court a decision made in violation of the requirements of the Housing Code of the Russian Federation, in within six months from the day when he learned or should have learned about the decision made. The court, taking into account all the circumstances of the case, has the right to uphold the appealed decision if the vote of the said owner could not influence the voting results, the violations committed are not significant and the decision made did not entail causing losses to the owner (Part 6 of Article 46 of the RF Housing Code).
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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Bulletin
The Housing Code specifies that the HOA voting ballot must contain the following information:
- a list of issues to vote on;
- date of final vote count;
- the address to which the completed ballot should be sent;
- fields for entering data about the owner (full name and data on the certificate of ownership).
The ballot provides three options for each issue: “for”, “against” and “abstained”.
If the meeting is held in absentia, the ballot (sample) must be sent to the owners along with the announcement of the meeting. If the event is held in person, this document is distributed to all participants at the stage of their registration at the very beginning of the event.
Power of attorney
If the homeowner is unable to attend the meeting in person, the law allows him to issue a power of attorney to another person to attend . The power of attorney should include all passport details and addresses of both the owner and his representative.
A power of attorney issued by an individual is certified only by his signature. But if the principal is a legal entity, in addition to the manager’s signature, you will need the seal of the HOA. Directly at the meeting, the presented power of attorney is signed by the chairman of the HOA.
Competence:
The competence of the general meeting of members of the homeowners association includes:
— amendments to the charter of the partnership;
— making decisions on the reorganization and liquidation of the partnership;
— election of the board and audit commission (auditor) of the partnership;
— establishing the amount of obligatory payments and contributions of members of the partnership;
— formation of special funds of the partnership, including a reserve fund, a fund for the restoration and repair of common property in an apartment building and its equipment;
— making decisions on obtaining borrowed funds, including bank loans;
— determination of directions for using income from the economic activities of the partnership;
— approval of the annual plan on the financial activities of the partnership and a report on the implementation of such a plan;
— consideration of complaints against the actions of the board of the partnership, the chairman of the board of the partnership and the audit commission (auditor) of the partnership;
— adoption and amendment, upon the proposal of the chairman of the board of the partnership, of the internal regulations of the partnership in relation to employees whose duties include servicing an apartment building, provisions on remuneration for their labor;
— determining the amount of remuneration for members of the board of directors of the partnership;
— making decisions on leasing or transferring other rights to common property in an apartment building;
— other issues provided for by this Code or other federal laws.
The charter of the homeowners' association may include the resolution of other issues within the competence of the general meeting of the association's members.
The general meeting of members of the homeowners' association has the right to resolve issues that fall within the competence of the association's board.
How can I appeal the decision?
In this case, as in face-to-face cases, you will have to go to court. You must write a statement of claim indicating:
- Full name of the judicial authority.
- Full name of the plaintiff.
- The essence of the claims.
- Date of application.
An appeal may be made by the owner, whose rights are limited by such a decision and at the same time:
- he didn't vote;
- or voted against such a decision.
The defendant in the case will be the initiator of the meeting.
Attention! You can submit your application within six months after the decision was announced.
The court may satisfy the claim in the following cases:
- In case of significant violations in the conduct of the described processes, including vote counting.
- If the issue does not fall into those categories that can be resolved by the HOA.
The decision may be upheld by the court in the following cases:
- Violations are not significant.
- The participation of this owner in the vote would not have affected the result.
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