Contents of the statute of a housing cooperative
Article 52 of the Civil Code determines that a legal entity such as a housing or housing-construction cooperative carries out its activities on the basis of a statute, which must be ratified by a decision of the meeting of founders. According to Article 113 of the Housing Code of Russia, the standard charter of a housing construction cooperative must contain:
- the name of the cooperative, which must include the word “cooperative” and indicate the key purpose of its creation;
- the location of the legal entity, which corresponds to the place of its state registration;
- in what order the structure’s activities are managed;
- goals, objectives and subject of activity;
- the amount of share contributions that must be made by members, the system for making these contributions and liability in case of non-compliance with the obligations to make them;
- the structure and level of competence of management bodies, and the procedure according to which they make decisions, including problems on which decisions are made by a qualified majority or unanimously;
- the procedure by which compensation for losses incurred by members of the organization is carried out.
The statute may include other provisions that do not contradict the law if they are related to the specifics of the activities of a particular legal entity.
What is the charter of housing cooperatives
Each legal entity in its work relies not only on the provisions of legislation and national documents, but also on the internal documentation of the organization, in particular, on the provisions of its charter. The charter of a legal entity is a set of rules that regulate the procedure for its activities. This is the main document of the organization, which includes the basic principles of the cooperative.
The charter defines the legal framework for the work of the cooperative: each organization can engage only in those types of activities that are mentioned in the specified document. Without a charter, it is impossible to go through the registration procedure for a housing cooperative and further activities of the cooperative without it are impossible.
Requirements for the statute of a housing cooperative
A housing cooperative whose statute does not comply with current Russian legislation does not have the right to carry out activities on a full scale. It is important to clearly define what requirements for the statute of a housing cooperative are put forward in existing legislative acts: 1. Article 52 of the Civil Code determines that the charter of a legal entity, which includes a housing cooperative, must include:
- information about its name;
- its location;
- subject of activity and key goals.
2. Article 116 of the Civil Code determines that the charter must contain information about:
- the procedure for inclusion in members of the organization;
- the amount of contributions, both entrance and share, their structure and mode of payment;
- the procedure for convening a conference (general meeting) of members of a housing cooperative;
- the level of liability that follows as a result of failure to fulfill obligations to pay contributions;
- the procedure for leaving such an organization and paying the share contribution that was made at the time of leaving, as well as compensation of another nature;
- the procedure for compensation for losses incurred by members of such a structure;
- the procedure within which the reorganization or complete liquidation of the structure occurs.
3. Paragraph 2 of Article 115 of the Russian Housing Code establishes the need to indicate in the statute the procedure for holding a general meeting.
4. Article 118 of the LC determines that the charter must reflect:
- the procedure for selecting members of the board, the number of such body and the period of its operation;
- the procedure for the management board to carry out its activities.
5. Article 119 of the Housing Code stipulates the need to indicate the period of authority of the head of the board.
6. Article 120 of the LC obliges to indicate the quantitative composition of the audit commission, and in addition the procedure for carrying out activities by this body or the auditor.
7. Article 128 of the Housing Code states that the charter defines a system for providing housing (renting out) for a fee, which became vacant as a result of the withdrawal or expulsion of their former owners from the cooperative until new members were admitted to the organization.
8. Article 130 of the LC indicates the need to prescribe in the charter the procedure within which the consideration of requests from members of the organization to leave at their own request will take place.
When preparing the statute of a housing cooperative, it is important to understand the specifics of each section. So, when describing the subject and purpose of operation, it is necessary to concentrate on the fact that the housing cooperative is endowed with special, rather than general legal capacity, which is typical for all non-profit institutions. Therefore, this structure can implement such activities, which are referenced in the constituent documentation and which correspond to the subject and goals that are stated in this documentation.
About the rules for drawing up a document and its characters
The charter according to the rules is formed by the members of the general meeting of the cooperative being described.
And this document is compiled as follows:
- First come the details of the approval of the charter: date, name, such as in the header of the paper.
- The following is a list of basic provisions: the name of the cooperative itself, including versions in foreign languages, as well as the exact legal address for registration. Information about the time of entry into the state register is indicated as a rule for recognizing its legal force. We should not forget about the presence of a round seal, emblem, and, if any, other methods of individualization.
- The cooperative's bank accounts are indicated, the document indicates responsibility to its property, and the rules for creating an organization in accordance with the Housing Code of Russia.
- A list of goals, objects and types of activities is given.
- The register and admission to the ranks of members of the enterprise are indicated, and a provision is spelled out on how to leave the organization.
- There is a section about the project participants themselves: the responsibilities, benefits, rights of each member of the cooperative.
- There is a description of the enterprise's property, and the sources of its financing are given.
- The type and features of organization management are determined.
- Information about the chairman of the housing cooperative, elected at the last meeting, is indicated.
- Details are given about the audit commission, as well as the features of accounting and reporting of the organization.
Membership and fees
As for membership, members of the cooperative can be individuals who are over 16 years old, as well as legal entities. The number of members cannot be less than five, but at the same time their number should not be higher than the number of residential premises available in the apartment building that is being built or purchased by the cooperative. The application for membership is considered by the board within 30 days and must be approved by a protocol decision of the general meeting. A person is a member of a housing cooperative from the date of payment of the entrance fee, but only after the general meeting has approved the corresponding decision on the membership of this person.
Contributions are paid by the members of the cooperative according to the rules established by the statute; this can be done by making a lump sum payment or in installments.
Until the full amount of the share contribution is paid, the dwelling for which payment is being made remains the property of the cooperative. It is important to know that an apartment building is the property of the cooperative until at least one of its members makes the full share contribution. After this, the cooperative turns into a structure that manages an apartment building.
The statute must stipulate what liability members bear in case of violation of their obligations to pay contributions, including failure to meet deadlines for depositing funds.
Controls
The general meeting is recognized as the highest management body of the cooperative and its meetings must be held at least once every 12 months. In fact, the general meeting of housing cooperatives is convened more often. This is facilitated, for example, by the need to officially approve all new members, as well as to carry out expulsion from membership. Taking this into account, the charter often provides for the possibility of conducting the voting process in absentia.
The charter of the cooperative determines the order in which the general meeting should be convened, the terms and methods of informing its members about the holding of the next meeting, the procedure for counting votes and notifying members of decisions made. To recognize the general meeting (conference) as competent, more than 50% of the members must take part in it. Article 117 of the LC establishes that a decision of the general meeting is approved if more than ½ of the members present at it voted for it, but if we are talking about voting on topics that are provided for by the statute of the cooperative, more than ¾ of the members present must vote “for”. The Housing Code defines a list of issues that fall within the competence of the meeting, including:
- holding board elections;
- holding elections for the composition of the audit commission;
- enrollment as a member of a housing cooperative;
- exclusion from its membership;
- issuing a resolution to reorganize the structure;
- carrying out division of premises between members.
Members of the board of a housing cooperative can only be its active members; their number and the period for which they are elected are determined by the charter. The Statute also establishes the functioning of this body and the procedure for making decisions. The board of the cooperative is responsible for managing the ongoing activities of the structure. The head of the board may be one of the members of this body; he is responsible for the implementation of decisions made by the members of the board. He has the right to carry out activities on behalf of the structure without a power of attorney, representing its interests and concluding transactions, as well as to exercise other powers that do not fall within the competence of the board or general meeting of the structure.
The Audit Commission is elected during the general meeting for a period that cannot exceed 3 years. Persons who are included in the audit commission do not have the right to be members of the board or hold other positions in the management bodies of the cooperative.
Payment of contribution upon leaving the cooperative
Membership in the cooperative ends when:
- making an independent decision to leave the cooperative;
- using the exclusion procedure;
- liquidation of a legal entity - a member of the structure;
- liquidation of the structure itself;
- death of a person who is a member.
Expulsion of a member is permitted if he grossly fails to fulfill his obligations without a valid reason. This resolution is passed by the general meeting. In this case, the person is paid the amount of the share he contributed in terms and in compliance with the conditions that are prescribed in the statute of the cooperative.
The period during which payment of the deposited amount must be made cannot exceed 60 days from the date of the decision to exclude a member of the housing cooperative.
In such a case, the expelled member, together with representatives of his family, loses the right to use the residential premises and must vacate it within 60 days from the date of the decision to expel. To ensure that the rights of family members of a member of a cooperative who has been expelled are not violated, the charter of the structure must provide for their preferential rights to become members of the organization if they have the finances required to fulfill the obligations to pay a share contribution.
Consequences of errors
Attention : the charter is the main legal document of housing cooperatives. It must be drawn up in strict accordance with current legislation.
In the provisions on the procedure for registering legal entities of the Civil Code of the Russian Federation, errors in the charter are not included in the list of reasons for refusal to carry out registration actions (Article 23 No. 129-FZ of the Russian Federation). Moreover, tax inspectorates usually do not read statutes. Thus, an error in the constituent document should not become an obstacle to assigning the status of a legal entity to the cooperative.
Nevertheless, errors and inaccuracies in the charter entail a number of consequences:
- The absence of an important clause in the document may complicate the work of the cooperative if controversial issues arise.
- Difficulties may arise when initiating legal proceedings both within the cooperative and with external agents (legal entities and individuals). An interested person can challenge the entire activity of the structure if he proves in court that it functioned on the basis of a charter that does not comply with the law.
The best way out of the situation is to adopt a new version of the charter, eliminating inaccuracies. If the Federal Tax Service refused registration, it is required to adopt a new legal charter and re-submit documents for registration of the legal entity .
Coverage of losses, reorganization and liquidation
Members of the housing cooperative must cover existing losses by depositing additional funds within 3 months after the annual balance is approved. Article 116 of the Civil Code determines that in case of failure to fulfill this obligation, the structure may be liquidated through judicial proceedings.
In cases where all members of the cooperative have paid their share contributions for the housing provided by the cooperative in full, these residential premises become the property of the members of the organization. As a result, the main goal for which the cooperative was created - meeting the housing needs of its members - is being achieved. After this, the cooperative can remain the managing structure if such a decision was made at a general meeting of owners. The second option, which is provided for in Article 122 of the Housing Code, is the reorganization of the structure into a homeowners’ association. A housing cooperative is considered reorganized from the date of state registration of the created HOA.
