Basic provisions on the partnership of real estate owners

The concept and features of a real estate owners' partnership

The general concept of such an organization is given in Art. 123.12 Civil Code.

This is an association of owners of similar real estate objects, voluntarily created by them for joint operation (ownership and use), as well as for the disposal, within the framework established by law, of property legally in their ownership or use and for other purposes provided for by law.

This norm provides a comprehensive description of this legal entity and allows us to establish its main characteristics.

Signs of a real estate owners' association

A real estate owners' association has the following features.

• Created on a voluntary basis. No one has the right to force anyone to become a member.
• Only owners of real estate can be participants. At the same time, there must be a sign of their commonality. They must be located in the same apartment building, or in neighboring buildings with common communications, and the land plots must be part of a single dacha area. Otherwise, management of common property will be impossible.
• The partnership has a purpose of creation. It pursues joint ownership and use of common property. It includes halls, corridors and other premises in an apartment building intended for use by all owners. In the case of dacha areas, we are talking about communications serving the owners of the site (water supply and other local engineering networks). This is a non-profit association.

What is the difference between UO and TSN

Managing a house with the help of a management company is the most common method of management in our country. I note that the management company is a commercial organization and its main goal is to make a profit. Having entered into an agreement for the management of the house with a management company, residents, in addition to the costs of maintaining and repairing common property, also pay for the services of the management company, which takes care of monitoring the condition of the house, performing the necessary work and timely payment for services by all owners of the apartment building.

A partnership of real estate owners is a non-profit organization whose main goal, unlike a management organization, is not to make a profit, but to solve problems that directly affect the quality of life (Article 123.12 of the Civil Code of the Russian Federation, Article 135 of the Housing Code of the Russian Federation).

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Activities and rights of the real estate owners' association

This issue has not received detailed regulation in the Civil Code. However, the activities of homeowners' associations are distinguished by detailed elaboration in Art. 137 LCD.

These norms provide the HOA with the following rights:

• Conclude agreements on the management of one or more apartment buildings.
• Determine the financial parameters of the coming year, including the costs of all types of maintenance and repairs of both the houses themselves and auxiliary equipment. At the same time, the income part is formed from membership fees.
• Determine the amount of contributions that members must pay in proportion to their shares in the common property right. This is done based on the planned annual financial parameters.
• Provide services and perform work at the request of premises owners.
• Conclude loan agreements.
• Pay for the work of the partnership's counterparties.
• Exercise ownership rights to your property. The HOA has the right to sell, transfer for temporary use, or exchange things belonging to it.
• Provide part of the common property in an apartment building for the use of third parties, if this does not conflict with the interests of the members.
• Make changes to part of the common property (superstructure, reconstruction) in cases where this does not violate the rights and interests of the owners.
• Obtain rights (ownership, use) to land plots adjacent to the house or houses for the purpose of constructing commercial buildings, residential facilities or other buildings.
• Organize the development of the adjacent site, acting on behalf and at the expense of members, respecting the interests of the latter.
• Make any transactions that meet the goals of creating the organization.

Organization of a home/property owners' association

HOA & TSN

(nuances of the organization)

Recently, there has been a strong trend in the construction of cottage villages, which are essentially a kind of replacement for gardening and vegetable garden partnerships, or a variation of them. The law does not define the concept of a cottage community and this raises a lot of questions, inaccuracies and applications of analogies of law instead of direct norms. Also, many owners of apartment buildings no longer leave the issues of property management, creation of new public facilities and major repairs of existing ones to municipal services and management companies.

Now many houses and cottage communities are switching to a self-government system. Associations of homeowners, partnerships of real estate owners, and initiative groups among residents are organized. In fact, it is one of the most effective and efficient ways to manage real estate and general assets. Agree that the owners are most interested in caring for common property, its safety and improvement. When deciding on independent property management, questions arise: how to register? How to hold a general meeting? How to draw up minutes of a general meeting? And the first, in my opinion, one of the most important questions: how possible is it to realize what is planned? Does the desire match the possibilities?

If we are talking about HOAs, then the answers to most questions are already contained in the Housing Code, judicial practice and court clarifications on this issue are also sufficient. What if it is a new or infrequently used form? For example, combining several houses into one HOA or TSN in a cottage community? The procedures seem to be the same. But there are also big differences that lie in the little things.

If we are talking about merging several residential buildings into one HOA, then we need to take into account several nuances:

Management of common property. This is the main point that must be taken into account. How can you tell if two houses that are separate from each other have common property? At first glance, the answer is obvious: of course not. But if you look closely and carefully analyze the situation, it is quite possible that the answer will change to yes.

So, what can and should unite two apartment buildings:

· Availability of a common border of land plots, according to the Unified State Register of Real Estate;

· Sharing of common property is permitted by the design documentation of these houses;

· Ensuring the operability of the common property of one house depends on and is achieved through technological connection to the common property in another house;

· Availability of infrastructure elements that are intended for use by the owners of the premises of both houses;

But even after checking all the information and making a decision to merge two apartment buildings into one HOA, it is necessary to draw up a protocol of the general meeting of owners on the creation of such a HOA. Decisions on the creation of such a united HOA are made by the owners of both buildings at general meetings of owners in each apartment building. The decision will be considered adopted if a majority (at least 2/3) of the owners of the premises of each building votes “for”.

Also, when drawing up the minutes of the general meeting of owners, it is necessary to take into account what features of the adoption and execution of these decisions are established by the federal executive body, which carries out the functions of developing state policy and legal regulation in the field of construction, architecture, urban planning and housing and communal services.

After drawing up the protocol and developing the necessary internal documents (the charter of the HOA, the decision to create an HOA), it is necessary to collect a package of documents for registering the HOA with the tax office; currently, there is no need to go directly to the tax office; all necessary actions can be performed by a notary, in fact, the notary will do it for you will submit documents to the tax office and issue documents on registration of the HOA.

However, even after registering an HOA with the participation of two houses, you may encounter misunderstandings on the part of the residents. In judicial practice, there are cases when people go all the way to the Constitutional Court of the Russian Federation in an attempt to prove the impossibility of creating one HOA for two houses. Judicial practice, as a rule, develops in favor of the HOA. Take, for example, the ruling of the Constitutional Court No. 708-O dated March 27, 2018. In the descriptive part, the Court makes it clear that if the houses are connected, for example, by a single foundation, then the creation of one HOA is legal and does not contradict the legislation of the Russian Federation.

It should also be noted that in accordance with the letter of the Ministry of Construction of Russia dated 08/01/2016 N 24192-OD/04, such an HOA can be created by the owners of premises in several apartment buildings, the number of apartments in which totals no more than thirty. However, paragraph 1 of part 2 of Article 136 of the Housing Code of the Russian Federation (as amended by the Federal Law of 06/04/2011) does not apply to HOAs created before 06/18/2011.

As can be seen from the practice of application and explanations of government bodies, each specific case needs to be examined in detail, since each case is unique and it is not always possible to apply the law by analogy.

With a partnership of real estate owners, the situation is a little more complicated, since this type of real estate management is not separately described in the Housing Code of the Russian Federation, most of the rules are applied by analogy, and there are some nuances in the organization of management and management of suburban real estate.

The creation of a partnership of real estate owners is usually used to organize the management of suburban real estate (hereinafter referred to as TSN).

The term Association of Real Estate Owners is not defined in any way by the Housing Code of the Russian Federation, but Art. 135 of the Housing Code of the Russian Federation indicates that a Homeowners Association is a type of partnership of real estate owners. Thus, we can conclude that the Association of Real Estate Owners is a more global term and the application of the rules of law regulating the activities of HOAs can also be attributed to the activities of TSN.

To create a TSN, it is necessary that the property be located in close proximity to each other. It is not legally determined how much real estate (houses, plots) can be combined into a HOA. But the criterion for unification remains unchanged:

· The presence of common boundaries or the location of property in close proximity to each other;

Availability of general infrastructure (gas, electricity, water, sewerage, roads)

· Dependency of provision of necessary resources between houses (one sewerage system, common road, common water supply)

The goals of creating a TSN are no different from the goals of creating an HOA: managing common property, creating common property and improving the common property of owners.

For the correct formation of the boundaries of the TSN, it is important to clearly understand what is meant by the term “Common boundaries”; the answer to this question is given by the letter of the Ministry of Construction of Russia dated 01.08.2016 N 24192-OD/04: the common boundary of land plots in Part 2 of Article 136 of the Housing Code of the Russian Federation is understood the border of adjacent land plots, which must be confirmed by information contained in the state real estate cadastre.

To register a TSN, a package of documents is required similar to the creation of an HOA; a general meeting is held for all owners wishing to unite (provided that their real estate is within the boundaries of the created TSN), a charter and other documents necessary for registration are drawn up. Documents must be submitted to the tax office to register the TSN.

But if in a residential building it is clear and understandable what property is common, then for suburban real estate this may be a question. Since during the construction of cottage villages or the creation of gardening partnerships, roads and communications are usually registered in the name of the developer or transferred to the balance of the municipality of the area where the property is located.

In the context of the above issues, it should be taken into account that the lack of clear regulation in the legislation of issues of common property in suburban real estate is due to the following points: the development of suburban real estate did not initially imply the presence of common property among the owners of suburban real estate. As a rule, everything that was needed was located either on the land plot (for example, a septic tank, there was no talk of a general sewerage system for a long time), gas and electricity are usually supplied individually to each house, and these networks are never privately owned, but belong to the relevant government agencies . What's left? Water. In most cases, the issue was resolved by the presence of a well or borehole on the site. And only relatively recently cottage villages began to appear in which all these networks are supposed to be present. Thus, it turns out that the purchase of real estate in a cottage village does not automatically entail the creation of a share in the right to infrastructure facilities (water supply, sewerage, roads) in this village. A share in the right to these objects arises in accordance with the Civil Code of the Russian Federation, the Land Code of the Russian Federation and other regulations. In most cases, the owner purchasing real estate in the village begins to pay fees for the maintenance of common property and thus has the right to a share in this property by virtue of the law.

In conclusion, I would like to say that on July 27, 2017, the Federal Law on the conduct of gardening and vegetable gardening by citizens for their own needs and amendments to certain legislative acts of the Russian Federation No. 217-FZ was adopted. Which determines the ownership of public property within the boundaries of the gardening or truck farming area, in proportion to the area of ​​these plots. In accordance with Art. 25 of Federal Law No. 217-FZ of July 27, 2017, the specified property belongs to the right of common shared ownership to persons who are owners of land plots. For the purposes of applying the analogy of law, this makes it much easier to understand the legal regime of common property in a cottage community. But this still remains an analogy of law for cottage communities.

How to get this property on the balance sheet of TSN? After all, none of the owners wants to improve someone else’s property or create public facilities on someone else’s land (which may even be considered illegal). The answer to this question, unfortunately, is not contained in the Housing Code of the Russian Federation, but there are business customs and judicial practice. Based on business customs, it is necessary to contact the district municipality, inform them about the creation of TSN and ask to transfer the objects of interest to the balance sheet of TSN. After completing a certain procedure, most likely the property will be transferred to the balance sheet of TSN. Judicial practice also proceeds from the logic that the common property of the owners should be in the shared ownership of all owners and be on the balance sheet of TSN.

Conditions for creating a real estate owners' association

The Civil Code does not contain a list of conditions that allow the creation of a partnership of real estate owners. Therefore, it is worth focusing on the requirements of special legislation.

The creation of an HOA is provided for in Art. 135 LCD. According to its provisions, an organization can be created at facilities united by common communications. At the same time, there must be at least 2 owners. If that person owns the entire complex, they cannot form an HOA.

To establish this organization, it is necessary to hold a general meeting of owners. At the same time, the number of those voting “for” must be more than half of the total number of votes assigned to the owners.

The voting results are reflected in the protocol, which must contain information about all issues being considered and clearly indicate the creation of the HOA and the approval of its charter. These documents must be prepared properly.

The period for which the partnership is created is unlimited. However, the charter may provide otherwise.

Requirements for the charter

Art. 123.12 establishes the basic requirements that the charter of a real estate owners' association must meet. These include the following provisions:

• Location, which is a populated area.
• Name. It must necessarily include the phrase “property owners’ association.”
• Data about the goals and subject of activity. We are talking about joint exploitation of common property.
• The procedure for formation, structure, powers and methods of their implementation, as well as the procedure for making decisions by the bodies managing the partnership.

This list is open and is supplemented by special laws. In particular, Art. 137 of the Housing Code requires the existence of a procedure for admission to and withdrawal from the HOA, as well as an indication of the procedure for the formation and competence of the audit body.

TSN capabilities

A partnership of real estate owners implies an association of owners of residential and non-residential premises to solve problems related to the maintenance of the common property of apartment buildings. This is a legal entity, which means it must have its own governing bodies:

• general meeting of TSN members,
• TSN board,
• chairman,
• audit commission.

The most important issues are decided by the general meeting, but current affairs, such as hiring and firing employees, concluding agreements with contractors and resource supply organizations, are dealt with by the board and chairman. The purpose of the audit commission is to monitor their activities.

All management bodies are elected from among the owners. Thus, people who are trusted by the majority of neighbors are allowed to manage. As a rule, TSN is headed by people with an active lifestyle.

In my case, the governing bodies included people who were previously on the council of the MKD. They knew about the problems at home and understood how to solve them. It is easier for the residents of the house to determine what is most important to do in the house at the moment. When TSN is created, owners have the opportunity to independently choose contractors.

Of course, it is possible to hire a manager or transfer part of the powers to a management company. In my opinion, this only makes sense when the owners do not have people with enough time to perform the functions of managing the house. But even in this case, TSN retains control over the activities of managers.

It is possible to combine several houses into one partnership if these houses are located on land plots:

• which, in accordance with the documents contained in the Unified State Register of Real Estate, have a common border;
• within which engineering and technical support networks and other infrastructure elements are located, which are intended for joint use by the owners of premises in these houses.

This will simplify the maintenance of the management apparatus and the arrangement of the area adjacent to the house, playgrounds, parking lots, etc. (Clause 2 of Article 136 of the RF Housing Code).

The Association of Real Estate Owners has the right to create special funds, which include a reserve fund. There is no clear concept of a reserve fund, but from the meaning of the word “reserve” we can conclude that it is intended to cover unforeseen expenses. Making a decision on the creation of such a fund falls within the competence of the general meeting of TSN members (Part 2 of Article 145 of the Housing Code of the Russian Federation).

An approximate list of expenses that can be financed from the reserve fund:

• timely payment for services/works of external suppliers, underfunded by the owners of premises in the house;
• accident elimination;
• urgent repairs not included in the estimate;
• fines;
• legal costs;
• other unforeseen expenses.
• The sources of formation of the reserve fund can be:
• income generated as a result of the excess of budget revenue items over the corresponding expense items;
• income from leasing common property and conducting other business activities of TSN;
• income from receipt of mandatory targeted contributions for the formation of a reserve fund in the amount established by the decision of the general meeting of TSN members;
• amounts received by TSN as a result of the collection of penalties, including in court, in the form of penalties, fines and other payments;
• voluntary contributions from owners and other persons wishing to assist in the implementation of the statutory activities of TSN;
• other income not included in the estimate received by TSN.

Since the reserve fund is created to cover unforeseen expenses, the decision on its use is made by the board of TSN (Article 147 of the Housing Code of the Russian Federation). The decision must indicate the purpose of spending the funds, the amount of expenses, and the recipient of the funds.

The presence of reserve fund funds facilitates the activities of TSN. The minimum number of regulatory legislative norms allows partnerships to exercise a high degree of independence in this matter.

Is it possible to pay remuneration to members of the HOA board?

Registration procedure

HOA members must select an executive body that will prepare documents for the tax authority.

State registration involves filling out a special application and signing it in front of a notary.

The documents are submitted to a specialized tax office and must include the charter, minutes of the general meeting and a receipt for payment of state duty. Registration may result in the issuance of documents or refusal. In the latter case, the refusal can be appealed

The organization has the right to enter into relations with counterparties, and its head to sign documents only after its registration is completed.

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