Organization and holding of a general meeting of members of the homeowners association

Competence of the general meeting

Homeowners' associations (hereinafter referred to as HOAs) are a special organizational and legal form inherent only to this category of legal entities.

At the same time, a feature of the HOA that distinguishes the partnership from other forms and methods of management is that, firstly, participation in the activities of the HOA belongs only to its members; secondly, the degree of influence of each member of the HOA on the decisions made (the number of votes belonging to each member of the partnership and taken into account when making decisions at general meetings) is determined in proportion to the size of the area of ​​the premises owned by him.

The decisions of the meeting are binding on all members of the HOA and the management bodies of the partnership. The basic norms of legislation establishing the procedure for organizing and holding a general meeting are enshrined in Art. Art. 44 – 48, 144 – 146 Housing Code of the Russian Federation.

The range of issues related to the conduct of the general meeting is determined by the Housing Code of the Russian Federation.

From this list it follows that the competence of the general meeting includes resolving the most important issues of its organization and activities (for example, the formation of the board, the audit commission, approval of the most important financial documents, such as estimates of income and expenses, a finished report, etc.). In addition, the charter of the company or the law may include other issues within the competence of the meeting.

We especially note that the general meeting has the right to consider issues referred by the Charter to the competence of the board of the partnership, if it considers it necessary (Part 3 of Article 145 of the Housing Code of the Russian Federation) - this once again emphasizes that the general meeting is the highest governing body.

Why do you need accounting in HOAs?

An HOA is a non-profit organization (although conducting commercial activities for the purpose of generating income is not prohibited, earnings should be spent on the main goals of the partnership). Since there is a movement of funds in it, accounting and tax accounting are mandatory.

What norms and legal acts regulate the creation and activities of a partnership in 2021:

• Housing Code of the Russian Federation (Articles 135, 136 and 148);
• Federal Law No. 402 “On Accounting”;
• accounting regulations No. 106 n;
• Order of the Ministry of Finance No. 66n “On the forms of financial statements of organizations”;
• internal accounting policy.

Accounting is designed to solve certain problems:

• control over the movement of funds;
• correct reflection of funds in accounts;
• distribution of finances, including through the formation of funds.

For this purpose, a managing body is organized in the HOA staff, which includes an accountant. He must maintain accounting documentation and submit reports to the Federal Tax Service, Pension Fund and Rosstat on time.

Initiator and agenda of the general meeting

A general meeting may be convened on the initiative of:

• HOA members holding a combined 10% of votes;
• board.

In practice, as a rule, annual general meetings are convened at the initiative of the Management Board and documented by its special decision (minutes); Extraordinary meetings are convened to resolve any important issues that suddenly arise, and can be convened either on the board’s own initiative or on the initiative of the HOA members.

We note that in practice, convening the annual general meeting is the responsibility of the Management Board. This is due to the fact that, as stated above, the competence of the general meeting includes issues without which the normal functioning of the HOA is impossible, for example, approval of cost and income estimates, the amount of contributions, etc.

The agenda of the general meeting is formed when a decision is made to hold it, i.e. depending on whose initiative it is convened - by the board of the HOA, or by its member.

Please note that there are a number of issues that must be included in the agenda, as a rule, of the annual general meeting (for example, a report on income and expenses, etc.).

Unlike the annual one, the agenda of an extraordinary general meeting is determined by the range of issues for which the general meeting is convened.

Features of accounting entries

Accounting should be kept in 2021 using the chart of accounts, which is approved by the Ministry of Finance of the Russian Federation in order No. 94n. In accordance with it and PBU 9/99, 10/99, also approved by the Ministry of Finance, the following should be taken into account:

• on account 86 - member contributions;
• on account 90 - profit from commercial activities.

Payments that the HOA receives from members for utilities and dues are not income. These funds are targeted financing and are reflected in the corresponding account 86.

This account can be divided into calculations to reflect various receipts:

• 86-1 - for making targeted contributions from owners;
• 86-2 - to fix subsidies for utilities;
• 86-3 - for budget subsidies;
• 86-4 - to fix discounts for categories of members who have benefits;
• 86-5 - to reflect income from business activities;
• 86-6 - for other targeted revenues.

Income from commercial activities is sent to account 90. Funds received by the partnership through the provision of additional services (repair and other work in addition to the mandatory maintenance of apartment buildings) are sent here. Separating target and revenue receipts allows you to allocate tax-free funds from income.

The accounting entries for major repairs deserve a separate discussion. Firstly, funds for major repairs are targeted, must be accounted for separately and are not subject to taxation. Secondly, the overhaul of apartment buildings requires an additional injection of funds from the budget.

Thus, the postings should be made like this:

Chairman of the Board of the Partnership

The person convening the general meeting informs the HOA members about the decision made in a special notice. This notice may be:

• sent to HOA members by registered mail;
• handed over to HOA members against signature;
• if this is provided for by the charter of the partnership, it is placed in a specially designated place (bulletin board, etc.).

In practice, due to the fact that sending a message by registered mail entails additional costs, the second and third methods are mainly used.

The notice must contain information about the method of holding the general meeting (voting), the issues submitted to the general meeting (agenda), the time and place of its holding (if it is held through the joint presence of HOA members at the meeting), and the person who initiated the meeting.

The organization of the general meeting (its holding) is generally entrusted to the person who convened it.

As a rule, the work of the meeting is led ex officio by the Chairman of the Board of the Partnership or his deputy. If they are absent or avoid holding a meeting, such person can be any member of the Management Board. This rule of law is especially important for cases when a conflict arises in a partnership between its management and members of the HOA, and the meeting is convened on the initiative of the latter.

Protocol

During the meeting, the secretary must take minutes. It records the agenda and voting results.

Sample

Housing legislation does not establish a specific and unchangeable form of protocol. The LCD only contains instructions on what elements and main points must be present.

Firstly, at the top of the protocol form you need to indicate the exact address of the house for which this HOA was created.

Secondly, below you should write where exactly the meeting is being held (for example, in one of the apartments of the house or in some non-residential premises) and when it began (exact time).

It is necessary to mark which of the residents initiated the meeting. Usually this is the chairman of the partnership, but each owner included in the HOA has the right of initiative.

It is very important at the beginning of the event to count the number of residents who have appeared and determine what percentage of the building’s premises (both residential and non-residential) they have. These values ​​are also entered into the protocol. The fact is that any decisions of the meeting become invalid if the percentage of the premises owned by those gathered is less than 50.

The main part of the minutes is the agenda. In this section you need to specify what issues the owners intend to resolve during the meeting - for example, “Approval of the HOA Charter.” It is best to format this part as a numbered list.

Then the voting results for each issue are entered on the form and the decision made is formulated. The last part of the minutes summarizes the meeting: it briefly states whether the participants came to a consensus on all issues, whether all the tasks of the meeting were completed, and also again (but this time concisely and briefly) indicates what decisions were made.

The chairman and secretary put their signatures at the bottom of the form.

You can download samples below:

• minutes of the general meeting of members;
• minutes of the board meeting.

Voting, decisions and powers of the general meeting

Voting at a general meeting is carried out, as a rule, by ballots. The ballot contains the name of the partnership, the date, place and method of holding the meeting, issues put to vote, full name. member of the HOA, his address, the number of votes belonging to the HOA member, and, in fact, the decision he made.

In practice, voting papers are prepared in advance by the person on whose initiative the general meeting was convened.

Voting ballots are transferred (sent) by a member of the HOA to the counting commission of the meeting. After counting the votes, the counting commission draws up a protocol, which is signed by all members of the counting commission; the HOA is obliged to ensure the storage of ballots and minutes.

The powers of the general meeting are to consider issues included in the agenda, study submitted documents (for example, an annual report), hear candidates for election to the Management Board, Audit and Counting Commission, and make decisions on such issues (for example, to approve or not to approve certain other documents, certain candidates submitted for voting).

The General Meeting has the right to make decisions (is considered competent) if persons with more than 50 percent of the votes took part in its work.

Decisions of the general meeting are made either:

• ten percent of the votes of the HOA members who are present at the meeting;
• more than fifty percent of the total number of votes of HOA members. Such decisions are made on individual, most important issues, for example, reorganization and liquidation of the HOA (and related procedures), attraction of loans, credits, determination of directions for spending the income received by the partnership.

In conclusion, the following should be said

Firstly, from 2021, it is planned to introduce another special procedure for holding general meetings - using a special electronic system, if this is provided for in the charter of the HOA. (Article 44.1, 47.1 of the RF Housing Code); It is currently impossible to say how this method will be applied in practice.

Secondly, attention should be paid to appealing decisions made by the general meeting. Citizens living in such houses have the right to appeal decisions in courts of general jurisdiction (district courts) in the usual manner.

Citizens who have the status of an individual entrepreneur and who own premises (which are used to carry out business activities) in an HOA, in the event of a dispute with the partnership itself (for example, disputes about tariffs, fees for common house services and needs), apply to the arbitration court.

This position was taken by the Supreme Arbitration Court of the Russian Federation in Resolution No. 14700/12 dated 04/02/2013 in case No. A60-521/2012. Similarly, disputes are also considered in the arbitration court if a decision is challenged that concerns an organization that owns premises in HOA houses.

Judicial practice is based on the fact that the period for filing a corresponding claim in court is six months from the moment the interested person learned or should have learned about the alleged violation of his rights (Review of the legislation of the Supreme Court of the Russian Federation for the 3rd quarter of 2010, approved by the Resolution Presidium of the Supreme Court of the Russian Federation dated December 8, 2010).

Thirdly, in order to correctly resolve specific controversial situations, in addition to legal norms, it is necessary to apply materials from judicial practice that have developed in a particular region (often, decisions made by different courts have their own characteristics).

Finally, fourthly, the issues discussed above are quite complex, sometimes (when conflict situations arise) they require special legal knowledge, therefore, it seems advisable to involve lawyers with experience in this field when holding general meetings or appealing decisions made at them.

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Features of tax accounting in HOAs

Like any other legal entity, when a homeowners association is created, it operates under the general taxation regime (OSNO). This tax regime has the following nuances:

• In accordance with the Tax Code of the Russian Federation, contributions from owners are not subject to income tax and VAT (Articles 251 and 146, respectively).
• If the partnership has fixed assets on its balance sheet, then it must pay property tax (Article 373 of the Tax Code of the Russian Federation).
• Land that is listed as common property of an apartment building is not subject to land tax (Article 388 of the Tax Code of the Russian Federation).

The following are also exempt from VAT:

• provision of utilities, if the partnership purchases them from resource supply organizations and sells them to the owners without a markup;
• repair and maintenance of common property, if services are obtained from companies or individual entrepreneurs and sold to the owners at the cost of acquisition.

An additional condition in both cases is the fact that the HOA did not refuse the VAT exemption in accordance with Art. 149 of the Tax Code of the Russian Federation (clause 5).

The following receipts to the partnership fund are subject to VAT and profit taxation:

• fees for services provided through the HOA by third parties;
• provision of services in the amount of more mandatory contributions for additional payment.

An HOA, like any other taxpayer, can switch to another tax system, namely a simplified tax system (STS). Within its framework, the partnership will submit a smaller volume of reporting documents. To make the transition, you must submit a notification to the tax authority in 2021 by December 31. The taxpayer's transfer will be made from January 1 of the following year.

When working on the simplified tax system, you must submit a limited package of documents to the Federal Tax Service:

• declaration according to the simplified tax system;
• declaration 2-NDFL;
• the average number of members of the partnership.

Advantages of switching to simplification:

• no need to charge and pay VAT or income tax;
• the cost of acquired property can be included in expenses, thereby reducing property tax;
• The simplified tax system database does not include income from HOA members contributed as payment for utility services from third-party organizations.

If, when working on a simplified basis, you choose the “income minus expenses” option, you can receive regional benefits.

Main forms of implementation

Apartment buildings unite a large number of residents; gathering everyone to participate in a meeting is not an easy task. To overcome this difficulty, a choice is given as to the form in which the HOA meeting will be held:

1. Shared presence. It is held as a regular meeting with preliminary agreement on the time and place, followed by drawing up the final minutes and register of participants.
2. Extramural. If it is impossible to hold an in-person meeting (for example, there are few participants), it is recommended to schedule an absentee vote in the HOA. Time limits are set for participants to fill out voting ballots and then submit them for vote counting. In the form of absentee voting, it is convenient to hold meetings in buildings with a large number of apartments.
3. Part-time and part-time form. To use it, an early decision of the HOA members must establish the possibility of using the GIS housing and communal services system (clause 3 of Article 47 of the Housing Code of the Russian Federation). Property owners conduct absentee voting using the Internet after personal discussion of all current issues.

IMPORTANT! Several days are allotted for filling out ballots for absentee voting so that all owners can review and vote. Owner resolutions submitted after the due date cannot be voted on.

What to do after the meeting

All interested parties are informed about the decisions made at the residents' meeting. This happens through the publication of the minutes of the meeting on the partnership’s website, as well as through information boards at home. The minutes are accompanied by documents confirming the correctness of the conclusions, as well as the fact that the meeting took place:

1. Register of real estate owners.
2. Sample notice of appointment of a HOA meeting.
3. Documents indicating receipt of preliminary notices by property owners.
4. Registration list of participants.
5. Powers of attorney for representatives participating on behalf of the owners.

Conducting a meeting and drawing up the final minutes is a responsible undertaking; everything must be done according to the law. The minutes of the meeting can be drawn up in free form, and the mandatory data must be specified accurately and completely. Negligence in documentation leads to legal disputes over the legality of the adopted conclusions. Failure to comply with the requirements for paperwork may result in the results of the meeting being declared invalid or illegal.

Below you can leave comments about meetings held in your HOA, ask questions or discuss the nuances of filling out minutes.