HOA management agreement: what kind of management agreement is this that a housing association can conclude with a management company and what does it mean if this happens?

Purpose of the agreement between the HOA and the management company

The main purpose of the management company’s agreement with the HOA (homeowners’ association) is to delegate to this organization part of its functions for managing the common real estate of the owners of apartments in the building belonging to this association.

REFERENCE! The management of a housing association has the right to enter into agreements for the purpose of organizing the provision of communal resources (water, electricity, gas), as well as maintenance of common property (Part 1, Clause 1, Article 137 of the Housing Code of the Russian Federation).

An agreement on the management of common property by a third-party company is advisable in cases where members of the HOA:

do not have sufficient competence to resolve issues of home repair and maintenance;
do not have the necessary free time;
have significant debts to utility supply companies.

When concluding a service transaction, the management board must act on behalf of the property owners and in their interests (Part 8 of Article 138 of the Housing Code of the Russian Federation).

More information about what responsibilities the HOA has in relation to the owners, as well as what rights it has, is described in another article.

Legislative regulation

The rules for concluding an agreement with a management company for the management of a house are regulated by the following regulations:

Government Decree No. 416;
Housing Code;
Civil Code.

Resolution No. 416 determines the procedure for managing an apartment building. According to part “e” of paragraph 4 of the Resolution, a legal entity created to manage an apartment building (HOA) has the right to enter into an agreement to transfer management functions to a third party on terms that are most beneficial for the owners and tenants of the premises.

Clause 2 of Art. 162 of the Housing Code of the Russian Federation states that under the terms of the management agreement, the management company, on the instructions of the board of the HOA, undertakes to organize work on the repair and maintenance of the common property of residents, as well as to ensure the supply of utility resources through agreements with suppliers.

The agreement with the management company is concluded according to the general rules of civil transactions described in Art. 420-453 Civil Code of the Russian Federation.

Pros and cons of the agreement

Signing an agreement with a management organization by members of the board of a partnership has a number of advantages over managing a house solely by an HOA or choosing a management company as the main method of property management (find out what a HOA and a management company are, how they differ and what is better to choose, in this publication). These advantages include:

the presence of management company employees with experience in the field of housing and communal services;
saving time for HOA members;
availability of working capital at the management company;
the possibility of control by the HOA over the management company.

Typically, management companies are transformed state housing and communal services departments , whose employees understand housing legislation and can competently organize both the repair of premises and the collection of utility debts.

IMPORTANT! The management of the management company knows how to negotiate with resource supply companies and ensure an uninterrupted supply of resources to conscientious payers, even if a number of home owners have debts.

Among the disadvantages of a deal with a management company are additional costs for homeowners, as there is a need to maintain a large staff of employees. In addition, residents cannot exercise the same direct control over the activities of the involved company as over the board of the housing association.

Why did this topic even come up?

I recently came across a survey on the Housing and Communal Services Telegram channel, which I read to improve my legal knowledge when communicating with neighbors and utility workers. The author asked subscribers whether they trust the accounting department of their HOA. It turned out that 2/3 do not trust, and half of them have encountered accounting dishonesty.

The result was not surprising. Scandals involving HOAs regularly appear in the press. Three complaints are most often made against the management of the HOA.

Inflated payments, when, for example, receipts for consumed heat and electrical energy are issued to owners according to the standard, and money is transferred to resource supply organizations based on the readings of common house meters.
Payment to affiliated contractors for work that was not actually performed or was performed, but its market price is lower than the amount paid.
Concealing HOA income from apartment owners. For example, from advertising or renting out common areas.

How do accountants steal? Such studies have not yet been conducted. I became interested, and I analyzed the verdicts in criminal cases against HOA accountants over the past five years. It turned out that the majority of convicts use one of four simple schemes. These schemes fit into Art. 159 of the Criminal Code of the Russian Federation “Fraud” and Art. 160 of the Criminal Code of the Russian Federation “Misappropriation or embezzlement.”

Contents of the transfer of control document

The provisions of the agreement with the company hired for management are approved at a general meeting of residents-members of the HOA and are adopted if more than half of those who came to the meeting vote in favor of these provisions. The main provisions contained in the text include:

the subject of the agreement that one organization enters into with another;
rights and obligations of the parties;
amount and procedure for payment for services;
liability of the parties;
duration of the agreement;
resolving controversial issues;
other conditions.

The presence of individual clauses depends on the charter of a particular partnership.

Types of contracts

Currently, a partnership can enter into several types of agreements with the management company . The main ones are the following two:

contract;
management agreement, when functions are completely transferred to the company.

If contract documents are signed, the management of the house is carried out by the community of owners.

This condition is consistent with Article 148 of the Housing Code of the Russian Federation.

Relations between the two organizations will be regulated by Article 702 of the Civil Code of the Russian Federation.

A prerequisite for signing such a document is to list all the mandatory functions of the management structure:

inspection of all common property;
thorough preparation of all utilities;
waste removal work;
cleaning the local area and all premises;
full provision of all fire safety;
other works.

When concluding an agreement, it must be taken into account that it must be concluded for a period of at least one year.

If an agreement on management issues is chosen, which was discussed in detail in the previous paragraph, a different situation arises when two forms of government are combined .

In this case, the owners' society has every right to check the quality of all work done. At the same time, control over financial flows will not be under the jurisdiction of the meeting.

The meeting acts as an intermediary between the management company and each owner . The management company will directly interact only with the chairman and the board, which is much more convenient than contacting all residents separately.

How is this paper filled out correctly?

The text is drawn up by the board and approved at the meeting, but there are a number of clauses and sections that must be described in service agreements.
The “General Provisions” section contains information about the subject and parties of the transaction. The parties to the agreement are the company involved and the chairman of the partnership acting on his behalf.
For the chairman, you need to indicate your full name and passport details, as well as your address and telephone number. For housing associations and management companies that are legal entities, it is necessary to indicate bank account numbers, TIN and other details.
REFERENCE! The subject of the transaction is the provision of services for managing the common real estate of the owners of an apartment building belonging to the partnership, as well as the provision of utility resources to the residents of the house for a certain fee.
Next, you need to list the rights and obligations of the parties to the agreement. The responsibilities of the involved organization include:
- carrying out repairs and maintenance of entrusted premises and territories within the established time limits;
ensuring the supply of utility resources in the required volumes;
Carrying out work with housing and communal services debtors to collect debts;
providing reports to the HOA board and the auditor and its activities.

It is important to discuss the procedure and form of reporting, as well as its indicators. The condition of the house must comply with the standards prescribed in Gosstroy Decree No. 170.

In order to fulfill the terms of the agreement, employees of the management organization have the right:
- attract employees to perform work and enter into contracts with contractors;
receive information about the debtors of the partnership and the financial condition of the structure;
distribute payments received from residents for the needs of management and maintenance of the house.

The range of rights of the involved companies can be changed depending on the purposes for which the agreement is concluded: full trust management or performance of individual functions.

The responsibilities of the housing association are limited to providing the contracting company with the necessary information about concluded contracts and financial obligations, as well as generating reports on the work of the management company for submission to the housing inspectorate and for consideration by the general meeting of residents.
REFERENCE! The functions of monitoring the timely payment by residents-members of the HOA of regular payments on utility bills and other receipts, regardless of the form of the contract with the involved company, are fully performed by the board (Part 2 of Article 148 of the Housing Code of the Russian Federation).
The rights of the housing association as the subject of the transaction include:
- obtaining information about the activities of the management company, viewing the contracts concluded by the company;
requirement for a report on the work done;
change of management organization.

The depth of intervention of the housing association in penal issues of the Criminal Code is regulated by the agreement and the charter.

After this, you need to list the responsibilities that accrue to the parties for failure to fulfill certain provisions of the contract.
The contracted management company may face not only civil but also criminal liability for failure to meet deadlines or perform work of inadequate quality if, due to the fault of the employees of this company, accidents occurred with victims, or major damage was caused to common property.
IMPORTANT! When hiring a third-party organization to manage common property, the board of the partnership is obliged to exercise control over its activities and bear responsibility to the residents of the houses (clause 2.2 of Article 161 of the Housing Code of the Russian Federation).
There are two options for the terms of the contract with the contracted company:
- for a long time;

When the goal of the parties is long-term cooperation, they draw up a two-year contract, since this is the period for which the board of directors in the housing association is elected, and after two years the contract is considered renewed automatically.

For a short period of time, the management company may involve:

to carry out major repair work;
to solve debt problems of the housing structure;
to perform other work.

In this case, the condition for terminating the service contract is not a specific date, but the fact that the relevant work has been completed.

The amount of payment to the involved company for organizing the management process is determined by the tenants-members of the association at a general meeting.

Also, the text of the agreement must specify possible options for pre-trial resolution of disputes that have arisen. The main method is usually negotiations, as well as the rules and procedure for initiating and conducting such negotiations with mandatory recording of them for subsequent possible presentation in court.

HOA and management company

Termination of the contract occurs either at the end of its validity period, if the parties have not expressed a desire to continue cooperation, or at the initiative of one of the parties. The partnership may terminate the agreement if there is a corresponding decision of the general meeting of owners, at which it was decided to change the management company.

Until now, in a large number of cases, disputes continue between HOAs and management organizations regarding the organization of activities of HOAs and management organizations when concluding a management agreement between them. In the practice of such relations, even the opinion of the HOA has appeared that when the HOA enters into a management agreement with the management organization, two management structures appear on an apartment building, and since, in accordance with clause 9 of Article 161 of the Housing Code of the Russian Federation, the house can be managed by only one management organization, then primacy should give to the HOA as a management method chosen by the general meeting, since the MA chooses the HOA and hires it to perform its functions. Let us present our point of view on this issue (in addition to the previously presented relevant explanation).

Currently, in a large number of cases, HOAs, especially newly created ones, enter into a management agreement with a management organization.

Many HOAs believe that the creation of an HOA in a building simultaneously leads to the establishment by the owners of premises in such a house of a method for managing the HOA.

This opinion is erroneous and leads to incorrect decisions by HOAs related to the organization of their economic activities, and, consequently, to the financial planning of the HOA’s activities, and moreover, it confuses relations with resource supply organizations. Let us present our position on legal relations regarding the status of the HOA and the management organization in relations regarding the management of such an apartment building in which the HOA has been created and a management agreement has been concluded between the HOA and the management organization.

The Housing Code provides:

1) creation of a HOA (Chapter 13 of the Housing Code of the Russian Federation)

2) organization of HOA activities (Chapter 14 of the RF Housing Code)

That is, an HOA can be created in any house, while regarding the organization of house management (clause 4, clause 148 of the Housing Code of the Russian Federation), the house can be managed:

- or HOA (board)

- or the management organization.

1 example - in a house managed by a management organization, an HOA was created, but the management method did not change, therefore, the house is managed by the management organization.

Example 2 - in a house managed by a management organization, an HOA was created and the HOA management method was chosen - the house is managed by the HOA - the management agreement is terminated.

Subclause 4 of Article 148 of the Housing Code of the Russian Federation does not give grounds to recognize two management organizations in the house, but provides the opportunity to establish by decision of the general meeting of owners (clause 4 of Article 44 of the Housing Code of the Russian Federation): either when creating an HOA, maintain the management method - a management organization or when creating an HOA establish a management method - HOA.

That is, the creation of an HOA does not automatically lead to the determination of the management method - “HOA”.

When a house is managed by a management organization, the HOA does not exercise control over financial flows, and this is the advantage of the HOA, since all the risks of “non-payment” fall on the management organization.

The relationship between the management organization and the HOA is built only through a management agreement:

— the management organization offers the HOA a list of works and an estimate for their implementation for a period of at least 1 year;

— The HOA approves: the list of works, schedule and volumes of their implementation. Estimates for their implementation, the amount of payments by owners for the maintenance and repair of common property;

— a list of works (with a schedule and scope of their implementation), estimates, and fees are an integral part of the management agreement, as an appendix to it;

— the management organization is obliged to carry out work in accordance with the terms of the contract, regardless of the order and volume of funds received by the owners (tenants) to the management organization (the sufficiency of financial resources is the risk of the management organization);

— The HOA signs to the management organization monthly certificates of services rendered, work performed, indicating their cost according to the estimate and with its recalculation in case of non-fulfillment or poor quality of work.

Thus, the HOA, in relations with the management organization, represents the interests of the owners of premises in an apartment building (clause 8 of Article 138 of the Housing Code of the Russian Federation) and, accordingly, acts as the customer of the work, who also exercises control over its implementation. At the same time, we note that the HOA in this case does not have the task of controlling financial flows; the HOA has the task of monitoring the volume, quality and timeliness of work, and recording the relevant information in acts.

The HOA can additionally (from the funds created) finance the management organization only for work not foreseen by the management agreement, and then depending on how it is specified in the management agreement.

There are HOAs that believe that they “hire” a management organization that acts in managing the house on behalf of the HOA, and therefore entrust it with keeping their accounting records. Neither the Civil Code of the Russian Federation nor the Housing Code of the Russian Federation contain options for relationships when one legal entity “hires” another legal entity for any actions.

The management organization in relations for the management of an apartment building in which an HOA has been created can only enter into agreements:

- when managing an apartment building - a management agreement - Article 162 of the Housing Code of the Russian Federation, where the management organization always acts on its own behalf;

- when managing a house of an HOA - a contract agreement (Chapter 37 of the Civil Code of the Russian Federation), which is called in the Housing Code of the Russian Federation an agreement on the maintenance and repair of common property (clause 1, clause 1, article 139 of the Housing Code of the Russian Federation, clause 6 of article 148 of the Housing Code of the Russian Federation).

That is, if a house is managed by an HOA, the management organization cannot conclude a management agreement with such an HOA; in this case, the management organization will enter into a contract agreement (Article 702 of the Civil Code of the Russian Federation), which differs from the management agreement (Article 162 of the Housing Code of the Russian Federation) and the procedure for execution works and the procedure for their payment (Articles 708-711, 715 of the Civil Code of the Russian Federation, etc.), when all work is paid for by the HOA in the manner established by the contract (in advance, upon completion, etc.). But in this case, all risks of non-payment by citizens fall on the HOA.

Regarding the issue of maintaining accounting records for HOAs by the management organization, we note the following.

According to the Law on Accounting (hereinafter referred to as Law No. 129-FZ), any organization has the right to maintain accounting records directly with its staff or with the involvement of a specialized organization (clause 2 of Article 6 of Law No. 129-FZ). However, only accounting functions can be transferred to a specialized organization, i.e. maintaining accounting documentation and transferring it to the customer organization of such services.

That is, the management organization in such relations with the HOA does not act as an organization managing the house, but as a specialized organization that conducts separate accounting operations for the HOA. At the same time, all financial flows related to the activities of the HOA (for all options for managing the house) are made only using the HOA bank account, accounting documentation and reporting on all receipts and expenses are prepared only for the HOA (Article 9 of Law No. 129-FZ).

If the management organization intends to receive payments from citizens with their subsequent transfer to the HOA (when managing the HOA house), then from January 1, 2010, such relations are regulated by Law No. 103-FZ, when the management organization must enter into an agreement with the HOA to accept payments and become the operator of the HOA , and this is an independent type of activity and does not relate to the management agreement.

Thus, when concluding a management agreement for an HOA with a management organization in accordance with paragraph 3, paragraph 2, Article 161 of the RF Housing Code, the house is managed by the management organization according to the rules of Article 162 of the RF Housing Code, as well as clauses 4, 5, 6 of Article 155 of the RF Housing Code RF, not HOA.

The management organization in relations for the management of an apartment building acts only on its own behalf, and not on behalf of the HOA, and therefore, the management organization receives all payments from citizens for the maintenance and repair of housing, and for utilities as its own income, and makes payments to contractors and specialized organizations as their own expenses. Such transactions are not reflected in the estimate of income and expenses of the HOA.

The financial plan of the Partnership when managing an apartment building by a management organization can be drawn up according to 2 options. The options differ depending on what decision the HOA makes - establish contributions for the HOA members for the maintenance of common property, which will be paid to the HOA, and the HOA will pay in the appropriate share (for the HOA members) for the services and work of the management organization (one option), or a payment for the maintenance of common property, which HOA members (as well as non-members) will pay to the management organization (another option). At the same time, payments for utilities must come from both members and non-members of the HOA directly to the management organization, i.e. In this case, the agreement with the RSO is always concluded by the management organization.

Regarding the right of the HOA to independently choose a management organization, we believe that such powers for the HOA should only follow from the relevant decision of the general meeting of owners of premises in an apartment building. This conclusion is based on the following.

Article 44 of the Housing Code of the Russian Federation establishes the exclusive competence of the general meeting of owners of premises in the house to decide on the choice of management method. Since the conclusion of a management agreement with a management organization is directly related to the choice of method of management of the management organization, and the HOA in this case was created (Article 136 of the RF Housing Code), but is not a management method (clause 4 of Article 148 of the RF Housing Code, according to which the house can be managed by a HOA or a management organization), then the decision to manage the house (with a created HOA) by a management organization must be made by a general meeting of owners, in which the owners must establish the procedure for choosing a management organization: grant such a right to the HOA or reserve it for themselves. If the HOA ignores this procedure, then the HOA’s decision to conclude a management agreement with the management organization chosen by it may be challenged by the owners, who will not be satisfied with the organization chosen by the Board or the Chairman of the HOA, or when the owners make a decision to manage the home of the HOA (in this case, the involved The HOA organization is not called a manager, but as stated above, a contract agreement for the performance of work is concluded with it).

Finally

If the owners of premises at their general meeting, creating a HOA (or in the current conditions), choose a method of managing the HOA, then the management organization that intends to simultaneously keep records of the accounting operations of the HOA and receive payments from citizens with the transfer of their HOA (or carrying out these operations in the current conditions ) must conclude three types of agreements with the HOA:

1) contract agreement for the performance of work, services for the maintenance and repair of common property (clause 6 of Article 148 of the Housing Code of the Russian Federation).

2) an agreement for the provision of services for maintaining accounting operations related to accounting in the HOA (clause “c”, paragraph 2 of Article 6 of Law No. 129-FZ).

3) an agreement for accepting payments from citizens for housing and communal services to the HOA, in which the organization (previously called the manager) is an operator that meets the requirements of Law No. 103-FZ, and the HOA is the supplier.

When HOAs are just being created, it is advisable to maintain the management method - the management organization, and the HOA - to “learn” how to manage the house for a certain time. As soon as the HOA feels strong and sufficiently competent in relevant matters, you can move on to the option of independently managing the HOA house.

www.progkh.ru

Monitoring the fulfillment of obligations

The functions of monitoring the work of the management company are carried out by the following organizations:

audit commission of the housing association;
general meeting of residents;
housing supervisory authorities.

After concluding an agreement with a third-party organization and transferring the functions of the board to its management, the chairman must notify the housing inspection about this within five days, providing its employees with a copy of the signed contract.

In a number of cases, a meeting of owners may initiate the creation of a special public commission to monitor the activities of the management company, endowing the commission with the appropriate powers.

So, concluding an agreement with a management company can ensure high quality service for an apartment building while maintaining control over the activities of this company by residents. To avoid conflict situations, it is necessary to provide for as many possible situations as possible and prescribe actions when they arise in the text of the agreement.

Can the functions of both organizations be combined?

Can an HOA be a management company? Quite often the question arises whether it is possible that an HOA will simultaneously be a management company or exist at the same time. In fact, the partnership has the right to:

self-management;
signing agreements for the provision of management services.

The residential community, as we know, has no commercial basis for its existence. That is why the law prohibits it from playing the role of a management company. However, no one forbids doing the work of the Criminal Code to the fullest extent.

The residents' organization can independently hire all the necessary personnel , as well as exercise control over the quality of performance of their duties. So, in fact, the HOA is the main structure.