Topic 11

11.1. Establishment and operation of a homeowners association

In accordance with the LCD, the possibility of the existence of such subjects of housing relations as homeowners' associations remains. Relations regarding the creation and activities of such partnerships are regulated by the norms of Ch. 13 LCD.

A homeowners association (hereinafter referred to as the HOA) is a non-profit organization, an association of owners of premises in an apartment building for the joint management of a complex of real estate in an apartment building, ensuring the operation of this complex, possession, use and, within the limits established by law, disposal of common property in an apartment building. 1 article 135 LCD).

HOA in accordance with Part 3 of Art. 135 LCD can be created provided that the number of members who created it exceeds 50% of the votes of the total number of votes of the owners of premises in an apartment building. The charter of the HOA is adopted at the general meeting, which is held in the manner prescribed by Art. 45-48 ZhK, by a majority vote of the total number of votes of the owners of premises in an apartment building. The HOA is created without limiting the term of activity, unless otherwise provided by the charter.

The HOA is a legal entity from the moment of its state registration and has a seal with its name, current and other bank accounts, as well as other details.

The HOA is liable for its obligations with all its property, but is not liable for the obligations of its members. Members of the HOA are not liable for the obligations of the HOA.

According to Art. 136 LCD owners of premises in one apartment building can create only one HOA. The decision on its creation is made by the owners of premises in an apartment building at their general meeting. Such a decision is considered adopted if the owners of the premises in the corresponding apartment building, having more than 50% of the votes of the total number of votes of the owners of the premises in such a building, voted for it.

In addition, an HOA can be created by combining:

1) several apartment buildings, the premises in which belong to different (at least two) owners of premises in an apartment building, with land plots located on a common land plot or several neighboring (bordering) land plots, utility networks and other infrastructure elements ;

2) several nearby buildings, structures or structures - residential buildings intended for the residence of one family, country houses with or without household plots, garages and other objects located on a common land plot or several neighboring (bordering) land plots, networks of engineering and technical support and other elements of infrastructure.

Article 137 of the LCD defines the rights of the HOA. These include the following:

1) conclude, in accordance with the law, an agreement on the management of an apartment building, as well as agreements on the maintenance and repair of common property in an apartment building, agreements on the provision of public services and other agreements in the interests of members of the partnership;

2) determine the estimate of income and expenses for the year, including the necessary expenses for the maintenance and repair of common property in an apartment building, the cost of major repairs and reconstruction of an apartment building, special contributions and deductions to the reserve fund, as well as expenses for other established LCD and the charter of the HOA goals;

3) establish, on the basis of the accepted estimate of income and expenses for the year of the HOA, the amounts of payments and contributions for each owner of premises in an apartment building in accordance with his share in the right of common ownership of common property in an apartment building;

4) perform work for the owners of premises in an apartment building and provide services to them;

5) use the loans provided by banks in the manner and on the terms provided for by law;

6) transfer material and monetary resources under the contract to persons performing work for the HOA and providing services to the partnership;

7) sell and transfer for temporary use, exchange property belonging to the HOA.

In cases where this does not violate the rights and legitimate interests of the owners of premises in an apartment building, the HOA has the right to:

1) provide for use or limited use of a part of the common property in an apartment building;

2) in accordance with the requirements of the legislation, in accordance with the established procedure, build on, rebuild part of the common property in an apartment building;

3) to receive for use or to receive or acquire into common shared ownership of the owners of premises in an apartment building land plots for housing construction, construction of utility and other buildings and their further operation;

4) in accordance with the requirements of the legislation, on behalf of and at the expense of the owners of premises in an apartment building, develop the allocated land plots adjacent to such a house;

5) conclude transactions and perform other actions that meet the goals and objectives of the HOA.

In the event that the owners of premises in an apartment building fail to fulfill their obligations to participate in the general expenses of the HOA, they have the right to demand in court the compulsory reimbursement of mandatory payments and contributions.

The HOA may demand in court full compensation for the losses caused to it as a result of the non-fulfillment by the owners of premises in an apartment building of obligations to pay mandatory payments and contributions and pay other general expenses.

The HOA is obliged to:

1) ensure compliance with the requirements of Ch. 13 LCD, the provisions of other federal laws, other regulatory legal acts, as well as the charter of the HOA;

2) conclude agreements on the maintenance and repair of common property in an apartment building with owners of premises in an apartment building who are not members of the HOA;

3) fulfill, in the manner prescribed by law, obligations under the contract;

4) ensure the proper sanitary and technical condition of common property in an apartment building;

5) ensure the fulfillment by all owners of premises in an apartment building of obligations for the maintenance and repair of common property in this house in accordance with their shares in the right of common ownership of this property;

6) ensure observance of the rights and legitimate interests of the owners of premises in an apartment building when establishing the conditions and procedure for the possession, use and disposal of common property;

7) take measures necessary to prevent or stop the actions of third parties that impede the exercise of the rights of possession, use and, within the limits established by law, the disposal of owners of premises with common property in an apartment building or hinder this;

8) represent the legitimate interests of the owners of premises in an apartment building, including in relations with third parties (Article 138 of the LC).

Article 139 of the LCD provides for the possibility of creating an HOA in apartment buildings under construction by persons who will own the ownership of premises in such houses. The decision to establish such a partnership is made at the general meeting of the said persons, which is held in accordance with the procedure established by Art. 45-48 LCD.

The liquidation of the HOA is carried out on the basis and in the manner established by civil law. As stipulated by Part 2 of Art. 141 of the LCD, the general meeting of owners of premises in an apartment building is obliged to decide on the liquidation of the HOA if the members of the partnership do not have more than 50% of the votes of the total number of votes of owners of premises in an apartment building.

In accordance with Art. 142 ZhK, two or more HOAs can create an association of homeowners' associations for the joint management of common property in apartment buildings. Management of such associations is carried out according to the rules of Ch. 13 LCD, i.e. in the same order as the management of the HOA.

11.2. Legal status of HOA members

Chapter 14 of the LCD defines the legal status of members of the HOA. According to Art. 143 LCD membership in the HOA arises from the owner of the premises in an apartment building on the basis of an application for joining a partnership. Thus, in order to become a member of the HOA, it is enough for the owner of the dwelling to apply for admission to the partnership. Persons acquiring premises in an apartment building in which an HOA has been established have the right to become members of the partnership after they acquire ownership of the premises. Membership in the HOA is terminated from the moment of filing an application for withdrawal from the membership of the partnership or from the moment of termination of the property right of a member of the partnership to the premises in an apartment building.

Article 144 of the LCD defines the structure of the governing bodies of the HOA, which are the general meeting of members of the partnership and the board.

The supreme governing body of the HOA is the general meeting of its members, which is convened in the manner prescribed by the charter of the partnership. The competence of this body includes:

1) amendments to the charter of the partnership;

2) making decisions on the reorganization and liquidation of the partnership;

3) election of the board and audit commission (auditor) of the partnership;

4) setting the amount of mandatory payments and contributions of members of the partnership;

5) formation of special funds of the partnership, including a reserve fund, a fund for the restoration and repair of common property in an apartment building and its equipment;

6) making a decision on obtaining borrowed funds, including bank loans;

7) determination of directions for the use of income from the economic activities of the partnership;

8) approval of the annual plan for the financial activities of the partnership and a report on the implementation of such a plan;

9) consideration of complaints against the actions of the board of the partnership, the chairman of the board of the partnership and the audit commission (auditor) of the partnership;

10) adoption and change, on the recommendation of the chairman of the board of the partnership, of the internal regulations of the partnership in relation to employees whose duties include maintenance of an apartment building, provisions on remuneration for their work;

11) determination of the amount of remuneration of the members of the management board of the partnership;

12) making decisions on leasing, pledging or transferring other rights to common property in an apartment building;

13) other issues provided for by the LCD or other federal laws.

The charter of the HOA may also include the resolution of other issues within the competence of the general meeting of its members.

The general meeting of members of the HOA has the right to resolve issues that fall within the competence of its board (Article 145 of the LC).

The procedure for organizing and holding a general meeting of members of the HOA is determined by Art. 146 of the LCD, in accordance with part 1 of which the notice of such a meeting is sent in writing by the person on whose initiative it is convened, and is handed to each member of the partnership against receipt or by mail (by registered letter). This notice shall be sent no later than ten days before the date of the general meeting. The General Meeting is not entitled to submit for discussion issues that were not included in the agenda.

The powers of the general meeting of members of the HOA are established in accordance with Art. 45 LCD and the charter of the partnership. The general meeting is competent if more than half of the members of the partnership or their representatives are present at it.

Decisions of the general meeting on issues referred by the LCD to the competence of the general meeting in accordance with clauses 2, 6, 7, 12, part 2 of Art. 145 of the LCD (making decisions on the reorganization and liquidation of the partnership, on obtaining borrowed funds, determining the directions for using income from the economic activities of the partnership, making decisions on leasing or transferring other rights to common property in an apartment building), are taken by at least 2/3 votes from the total number of votes of the members of the partnership. Decisions on other issues are made by a majority vote of the total number of votes of the members of the partnership present at the general meeting or their representatives.

The general meeting of members of the HOA is chaired by the chairman of the board of the partnership or his deputy. In case of their absence, the general meeting is chaired by one of the members of the board of the partnership.

The charter of the HOA may provide for voting by means of a written survey or voting by groups of members of the partnership, depending on the type (residential or non-residential) of the premises they own in an apartment building and the issues to be resolved (Article 146 of the LCD).

According to Art. 147 of the LCD, the executive body of the HOA is its board, which manages the activities of the partnership. It has the right to make decisions on all issues of the partnership, with the exception of issues related to the exclusive competence of the general meeting of owners of premises in an apartment building and the competence of the general meeting of members of the HOA.

The board of the HOA is elected from among the members of the partnership by the general meeting of members of the partnership for a period established by the charter of the partnership, but not more than for two years. It elects a chairman from among its members. The board is accountable to the general meeting of members of the partnership.

Meetings of the board of the HOA are convened by the chairman within the time limits established by the charter of the partnership. The meeting of the board is recognized as competent if the majority of its members participate in it. The decision of the board of the HOA is drawn up in a protocol.

The responsibilities of the board include:

1) compliance by the partnership with the law and the requirements of the charter of the HOA;

2) control over the timely payment by the members of the partnership of the established mandatory payments and contributions;

3) drawing up annual estimates of income and expenses of the partnership and reports on its financial activities, submitting them to the general meeting of the partnership for approval;

4) management of an apartment building or conclusion of contracts for its management;

5) hiring employees to service an apartment building and dismissing them;

6) conclusion of contracts for the maintenance, operation and repair of common property in an apartment building;

7) maintaining a list of members of the partnership, office work, accounting and financial statements;

8) convening and holding a general meeting of members of the partnership;

9) fulfillment of other obligations arising from the charter of the HOA (Article 148 of the LC).

The chairman of the board of the HOA is elected for a term established by the charter of the partnership. He ensures the implementation of the decisions of the board, has the right to give instructions and orders to all officials of the partnership, the execution of which is mandatory for them.

The chairman of the board acts without a power of attorney on behalf of the HOA, signs payment documents and makes transactions that, in accordance with the law, the charter of the partnership, do not require mandatory approval by the board of the partnership or the general meeting of its members, develops and submits for approval by the general meeting of members of the partnership the internal regulations regarding employees whose duties include maintenance of an apartment building, the provision on remuneration for their work (Article 149 of the LCD).

The bodies of the HOA also include the audit commission (auditor), which, in accordance with Art. 150 LCD is elected by the general meeting of members of the partnership for no more than two years. It cannot include members of the management board of the partnership. The Audit Commission elects its Chairman from among its members.

The audit commission (auditor) of the HOA performs the following duties:

1) audit the financial activities of the association at least once a year;

2) submit to the general meeting of members of the partnership a conclusion on the estimate of income and expenses for the corresponding year of the partnership and a report on financial activities and the amount of mandatory payments and contributions;

3) reports to the general meeting of members of the partnership on its activities.

The property of the HOA may be movable property, as well as real estate located inside or outside the apartment building.

According to part 2 of Art. 151 LCD funds of the HOA consist of:

1) from mandatory payments, entrance and other fees of members of the partnership;

2) income from the economic activities of the partnership, aimed at the implementation of the goals, tasks and obligations of the partnership;

3) subsidies for ensuring the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies;

4) other receipts.

Based on the decision of the general meeting of members of the HOA, special funds may be formed in the partnership, spent on the purposes provided for by the charter. The procedure for the formation of special funds is determined by the general meeting of the members of the partnership.

The board of the HOA has the right to dispose of the funds of the partnership held in the bank account in accordance with the financial plan of the partnership.

In accordance with Art. 152 of the LCD, in order to achieve the goals provided for by the charter, the HOA has the right to engage in economic activities, namely:

1) maintenance, operation and repair of real estate in an apartment building;

2) construction of additional premises and objects of common property in an apartment building;

3) leasing, renting a part of the common property in an apartment building.

Based on the decision of the general meeting of members of the HOA, income from the economic activities of the partnership is used to pay for general expenses or is directed to special funds spent for the purposes provided for by the charter of the partnership. Additional income may be directed to other purposes of the activity of the HOA, provided for in Ch. 14 LCD and the charter of the partnership.

Author: Ivakin V.N.

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