The procedure for changing the method of managing an apartment building and selecting a management organization
Created: November 08, 2019
The method of managing an apartment building is chosen at a general meeting of owners of premises in the apartment building, and can be chosen and changed at any time based on its decision. The decision of the general meeting on the choice of management method is mandatory for all owners of premises in an apartment building.
Owners of premises in an apartment building are required to choose one of the methods of managing an apartment building: direct management of the owners of premises in an apartment building, the number of apartments in which is no more than thirty; management of a homeowners' association or housing cooperative or other specialized consumer cooperative; management of the management organization.
If the owners have implemented a management method - management of a management organization, then the agenda of the general meeting should include the issue of terminating the contract with the management organization and choosing another management organization or changing (choosing) the method of managing the house (Part 1 of Art. 44 Housing Code of the Russian Federation).
The management agreement for an apartment building is amended and (or) terminated in the manner established by civil legislation (Part 8 of Article 162 of the Housing Code of the Russian Federation). Civil legislation allows unilateral amendment and termination of a contract if this is provided for by law or contract. In case of unilateral refusal of the contract, when such refusal is permitted by law, the contract is considered terminated (clause 4 of article 450, clause 2 of article 450.1 of the Civil Code of the Russian Federation).
The owners of premises in an apartment building unilaterally have the right to refuse to execute a management agreement for an apartment building, concluded as a result of an open competition, after each subsequent year from the date of conclusion of the said agreement, if, before the expiration of the agreement, the general meeting of owners of premises in the apartment building made a decision on choosing or changing the method of managing this house (part 4 of article 161, part 8.1 of article 162 of the Housing Code of the Russian Federation).
The owners of premises in an apartment building are given the right to unilaterally refuse to execute a management agreement for an apartment building if the management organization does not comply with the terms of such an agreement, and decide to choose another management organization or change the method of managing this building (Part 8.2 of Article 162 of the Housing Code of the Russian Federation ).
If the owners unilaterally terminate the house management agreement with the management organization, the obligations of the parties are terminated, unless otherwise provided by law, agreement or follows from the essence of the obligation (Clause 2 of Article 453 of the Civil Code of the Russian Federation).
To terminate the contract with the management organization, the owners of the premises must hold a general meeting of the owners of the premises, it should be noted that the meeting is valid (has a quorum) if the owners of the premises in the house or their representatives with more than 50% of the total votes took part in it (Clause 4, Part 2, Article 44, Part 3, Article 45, Part 1, Article 46 of the RF Housing Code). If the meeting has taken place, within five days a notice of the decision made at the meeting (termination of the contract), with a copy of the decision attached, must be sent to the organization that previously managed the house and to the state housing supervision body (municipal housing control body).
As mentioned earlier, the owners of premises in an apartment building independently choose the method of managing this building, one of which is the management of a management organization. At the same time, the management must ensure favorable and safe living conditions for citizens, the proper condition of the common property of apartment buildings, resolving issues of use of common property, as well as the provision of public services or, in some cases, the readiness of communications and equipment for the provision of public services (parts 1, 2 of Art. 161 Housing Code of the Russian Federation).
In order to select an apartment management company, we recommend, first of all, to determine a list of possible management companies. A management company is a commercial organization that provides management services for an apartment building on the basis of a license. An apartment building can be managed by only one management organization (Part 1.3, 9, Article 161 of the Housing Code of the Russian Federation).
To assess the activities of a particular management company, it is possible to use the information posted in the state information system of housing and communal services. The list of management companies can also be posted on the official websites of local governments.
The method of managing an apartment building and a specific management company are selected at a general meeting of owners of premises in an apartment building (hereinafter referred to as the general meeting) (Part 1, Clause 4, Part 2, Article 44, Part 3, Article 161 of the Housing Code of the Russian Federation). A decision can be made at the annual general meeting or an extraordinary meeting can be convened for this purpose, the initiator of which can be any of the owners (Part 2 of Article 45 of the Housing Code of the Russian Federation).
The decision on the choice of method of management of apartment buildings is made by a majority of votes from the total number of votes taking part in this general meeting (Part 1 of Article 46 of the Housing Code of the Russian Federation).
The number of votes of each owner is determined in proportion to his share in the right of common ownership of common property in an apartment building (Part 3 of Article 48 of the Housing Code of the Russian Federation).
When holding a general meeting through in-person, in-person, absentee or absentee voting, the owner’s decision must indicate (Part 5.1, Article 48 of the RF Housing Code):
1) information about the person participating in voting;
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 issue on the agenda, expressed in terms of “for”, “against” or “abstained”.
In this case, the owner does not have the right to take part in the general meeting with only part of his votes.
The decision of the general meeting is documented in minutes. The person on whose initiative the general meeting was convened submits the originals of the decision and minutes to the management organization no later than ten days after the general meeting of owners (Part 1 of Article 46 of the Housing Code of the Russian Federation).
After the general meeting makes a decision on choosing a management company, a management agreement is concluded with each owner on the terms specified in the decision of the general meeting. The owners of premises in this building, having more than 50% of the votes of the total number of votes of the owners of premises in this building, act as one party to the concluded agreement. At the same time, each owner of premises in an apartment building independently fulfills his obligations under the management agreement, including the obligation to pay for residential premises and utilities, and is not responsible for the obligations of other owners.
Under the terms of the agreement, the management organization, within an agreed period of time for a fee, undertakes to perform work and (or) provide services for the management of an apartment building, for the proper maintenance and repair of common property in such a house, to provide utilities to the owners of the premises and persons using the premises in this building, or to provide readiness of engineering systems, as well as to carry out other activities aimed at achieving the goals of managing an apartment building (Parts 1, 2 of Article 162 of the Housing Code of the Russian Federation).
Based on the decision of the general meeting, the owners of premises in an apartment building have the right to unilaterally refuse to fulfill the contract if the management organization does not fulfill its terms, and decide to choose another management organization or change the method of managing the apartment building (Part 8.2 of Article 162 of the Housing Code of the Russian Federation) .
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Who can initiate an OSS in a new building and vote on it
A management organization that wants to take control of a new building has two ways to do this:
- win an open competition organized by a local self-government body;
- organize a general meeting of owners in the house at the discretion of the management authority.
Before the adoption of Federal Law No. 485-FZ of December 31, 2017, it was problematic to carry out OSS in a new building: only owners of premises in a new building could take part in OSS, and registration of property rights sometimes took up to six months.
No. 485-FZ amended Art. 44 of the Housing Code of the Russian Federation. According to Part 1.1 of Art. 44 of the Housing Code of the Russian Federation, persons who have accepted premises in an apartment building from the developer under a transfer deed, within a year after this, receive the right to vote at general meetings of owners on an equal basis with those who have already registered ownership of the apartment.
Therefore, a management organization seeking to get a new apartment building into the license register can organize a general meeting of owners on this issue, without waiting for shareholders to receive documents confirming the registration of property.
How to manage new apartment buildings
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What should the management authority take into account when organizing OSS in a new building?
There are several features that the management authority must take into account when organizing a general meeting of owners in a new apartment building:
1. Before concluding a management agreement, the management entity cannot indicate itself as the initiator of the OSS.
The initiator of the meeting before the conclusion of the management agreement can only be the owner of the premises in the apartment building (part 6 of article 45 of the Housing Code of the Russian Federation). This means that a meeting in a new building can be held only after state registration of ownership by at least one owner of an apartment in the building. There is no mention of the right of shareholders to organize a general meeting of owners in the Housing Code of the Russian Federation or other legal acts.
If there are still unsold premises in the apartment building, then they belong to the developer. Consequently, as the owner of apartments in the building, the developer can also act as an initiator of the OSS and has the right to vote on issues brought up for discussion.
The initiator can also be an organization that temporarily manages the house under an agreement with the developer until the local self-government body organizes an open competition to select a management entity or the owners choose another management authority (Part 14 of Article 161 of the Housing Code of the Russian Federation).
2. To organize the OSS and calculate the quorum, it is necessary to obtain information about the owners of premises in the apartment building and the persons who accepted the apartments from the developer under the transfer and acceptance certificate.
Information about apartment owners and registered share participation agreements in the construction of an apartment building is available in the MFC and Rosreestr. And the register of shareholders who accepted the premises under the transfer deed will have to be requested from the developer. At the same time, the development company has the right to refuse to transfer such information, since it is not obliged to do so.
3. When determining the quorum and voting results, the number of votes of each OSS participant who has the right to vote should be taken into account.
In a new building, three groups of people can vote at the general meeting: owners, shareholders with acceptance certificates and the developer, if not all premises in the apartment building have been sold yet. The number of votes of each participant is calculated in accordance with Part 3 of Art. 38 LC RF on a general basis. Quorum is determined according to Part 1 of Art. 46 Housing Code of the Russian Federation.
4. The first meeting in a new building cannot be held in absentia.
An in-person OSS may also not be the best option: not all apartments may already be occupied. Gathering owners and shareholders to attend a general meeting in person can be difficult. Therefore, it is best to hold the meeting in absentia or in person.
If it was not possible to collect a quorum during the in-person form, then it should be transferred to the absentee form by sending voting forms to the participants who were not present.
5. The agenda of the general meeting of owners may contain any of the issues included in the competence of the OSS by the Housing Code of the Russian Federation. The status of a meeting participant does not affect this in any way: shareholders can vote on any of these issues on an equal basis with the owners.
The agenda includes mandatory issues for the selection of the chairman, secretary and counting commission. Then - questions about the choice of management method for apartment buildings and the choice of a management organization, if the management method is chosen by the management company. The agenda also includes questions about the approval of a management agreement, a list of works and services, and approval of the tariff for the maintenance and repair of the common property of the house.
Instructions for conducting OSS in the form of in-person and absentee voting
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