Advice apartment building
This institution is brand new. The need for its introduction is due, in our opinion, to the desire of the state to involve the owners of the premises in the process of managing an apartment building (at present, most citizens are trying in every possible way to avoid this). The concept, procedure for election, as well as the rights and obligations of the council are described in detail in the new art. 161.1 RF LC. We do not consider it necessary to rewrite this article, we will only present an overview of the main provisions and try to understand how the creation of the council will affect the activities of participants in the housing services market.
So, by virtue of paragraph 1 of Art. 161.1 of the Housing Code of the Russian Federation, owners of premises in an apartment building with more than four apartments (if an HOA is not created in such a house or this house is not managed by a housing cooperative (other specialized consumer cooperative)), are obliged at a general meeting to elect the council of an apartment building from among the owners of the premises (otherwise speaking, the management organization or direct management is chosen as a method of management). Its chairman is elected from among the members of the council. Paragraph 2 of Art. 161.1 of the Housing Code of the Russian Federation provides for a compulsory procedure for the implementation of the above norm: if during the calendar year * (8) the decision to elect the council is not made or not implemented, the local government convenes a general meeting within three months, the agenda of which includes questions about the election of the council at home or creation of an HOA. However, this does not seem to be enough (residents may simply ignore such meetings or still not implement the decisions made). No alternative to an open competition for the selection of a managing organization in this case not provided. The main thing is to increase the legal awareness of citizens, and in this matter, coercive measures do not work. Therefore, Art. 161.1 of the LC RF may remain declarative. The benefits of introducing the institution of the council can only be in those houses where the residents are initially involved in management and are interested in working together, but creation of HOA unprofitable. Unfortunately, there are very few such cases.
The most interesting for management organizations and companies with which owners enter into contracts when choosing direct management of the house are following points:
– the council controls the provision of services, the performance of work by these companies, monitors the quality of the services provided utilities(clause 5, clause 5, article 161.1 of the LC RF);
– the chairman of the council, on the basis of a power of attorney issued by the owners of the premises, monitors the fulfillment of obligations under concluded agreements for the maintenance and repair of common property, signs acts of acceptance of services and works for maintenance and current repairs, acts on violation of quality standards or the frequency of these services and works, acts on the non-provision of public services or the provision of public services of inadequate quality, and also sends appeals to local authorities about the failure of the managing organization to fulfill its obligations (clause 6, clause 8, article 161.1 of the RF LC);
– the chairman of the council, on the basis of a power of attorney issued by the owners of the premises, concludes a management agreement or (in the case of direct management) agreements with the relevant companies (clause 3, clause 8, article 161.1 of the RF LC). It is also noted here: under an apartment building management agreement, all owners of premises in an apartment building acquire rights and become obligated, having granted the chairman of the council of an apartment building powers certified by such powers of attorney. It turns out that other owners must sign the contracts themselves (however, the law does not allow forcing them to do this).
1. The owners of premises in an apartment building are obliged to hold an annual general meeting of owners of premises in an apartment building every year. Unless otherwise established by the general meeting of owners of premises in an apartment building, the annual general meeting of owners of premises in an apartment building is held during the second quarter of the year following the reporting year, in the manner prescribed by this article.
2. Conducted in addition to the annual general meeting general meetings of owners of premises in an apartment building are extraordinary. An extraordinary general meeting of owners of premises in an apartment building may be convened at the initiative of any of these owners.
3. The general meeting of owners of premises in an apartment building is competent (has a quorum) if it was attended by the owners of premises in this building or their representatives with more than fifty percent of the votes of the total number of votes, with the exception of the general meeting of owners of premises in an apartment building, conducted on the issue specified in clause 4.5 of part 2 of Article 44 of this Code. In the absence of a quorum for holding an annual general meeting of owners of premises in an apartment building, a repeated general meeting of owners of premises in an apartment building must be held. The general meeting of owners of premises in an apartment building, held on the issue specified in clause 4.5 of part 2 of Article 44 of this Code, is competent (has a quorum):
1) if there is more than one entrance in an apartment building, if the general meeting of owners of premises in an apartment building was attended by the owners of premises in this apartment building or their representatives, who have more than fifty percent of the votes of the total number of votes of owners of premises in this apartment building , including owners of premises in an apartment building, in the entrance of which the transferred premises are located, having more than two-thirds of the votes of the total number of votes of such owners;
2) if there is one entrance in an apartment building, if the general meeting of owners of premises in an apartment building was attended by the owners of premises in this apartment building or their representatives, who have more than two-thirds of the votes of the total number of votes of owners of premises in this apartment building.
(see text in previous edition)
3.1. The managing organization, the board of a homeowners' association, a housing or housing-construction cooperative, another specialized consumer cooperative are obliged to maintain a register of owners of premises in an apartment building, which contains information that allows identification of the owners of premises in this apartment building (last name, first name, patronymic (if any) the owner of the premises in the apartment building, the full name and main state registration number of the legal entity, if the owner of the premises in the apartment building is entity, number of premises in an apartment building owned by an individual or legal entity), as well as information about the size of their shares in the right common property on the common property of the owners of premises in an apartment building. Upon receipt by the managing organization, the board of a homeowners' association, a housing or housing-construction cooperative, another specialized consumer cooperative, an appeal in writing, including an appeal using the system, the owner or other person specified in this article, on whose initiative a general meeting of owners of premises in an apartment building, on the provision of a register of owners of premises in an apartment building, these persons are obliged, within five days from the date of receipt of such an application, to provide the owner or other person specified in this article with this register. The consent of the owners of premises in an apartment building to the transfer of personal data contained in the register of owners of premises in an apartment building, when this register is provided in the manner prescribed by this part, in order to convene and organize a general meeting of owners of premises in an apartment building, is not required.
4. The owner, other person specified in this Code, on whose initiative a general meeting of owners of premises in an apartment building is convened, are obliged to inform the owners of premises in this house about such a meeting no later than ten days before the date of its holding. Within the specified period, a notice of holding a general meeting of owners of premises in an apartment building must be sent to each owner of premises in this house by registered mail, unless a decision of the general meeting of owners of premises in this house provides for another way to send this message in writing, or handed over to each owner of the premises. in this house against signature or placed in the premises of this house, determined by such a decision and available to all owners of premises in this house.
(see text in previous edition)
5. The notice of holding a general meeting of owners of premises in an apartment building must contain:
1) information about the person on whose initiative this meeting is convened;
2) the form of holding this meeting (in-person, absentee or face-to-face absentee voting);
(see text in previous edition)
3) the date, place, time of this meeting or, in the case of holding this meeting in the form of absentee voting, the deadline for accepting decisions of the owners on the issues put to the vote, and the place or address where such decisions should be submitted;
4) the agenda of this meeting;
5) the procedure for getting acquainted with the information and (or) materials that will be presented at this meeting, and the place or address where they can be found.
6. Owners who have at least ten percent of the votes of the total number of votes of the owners of premises in an apartment building have the right to apply in writing to the managing organization or the board of a homeowners' association, housing or housing construction cooperative, other specialized consumer cooperative to organize a general meetings of owners of premises in an apartment building. In the application for holding a general meeting of owners of premises in an apartment building, issues to be included in the agenda of the meeting should be formulated. At the request of the owners, the managing organization, the board of a homeowners' association, a housing or housing-construction cooperative, or another specialized consumer cooperative are obliged to take the measures necessary for holding a general meeting of owners of premises in an apartment building within forty-five days from the date of receipt of the application, but no later than less than ten days before the date of the general meeting, notify each owner of the premises in this house of the holding of this general meeting in in due course, as well as arrange Required documents based on the results of this general meeting and ensure that they are brought to the attention of the owners of premises in this house in the manner prescribed by paragraph 3 of Article 46 of this Code.
7. A general meeting of owners of premises in an apartment building may be convened at the initiative of the managing organization that manages this apartment building under a management agreement. At the same time, the agenda of such a meeting may include issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building.
Finding a person who can count - what could be easier? But in order to count the votes of owners at a general meeting, you need knowledge and a desire to communicate. The general meeting of owners of premises in MKD is a specific event where completely different and often unpleasant people meet. They argue, swear and at times use foul language. The meeting must be conducted in such a way as to get a decision made by its results, and not a fight.
The leader of the general meeting in housing law is called the chairman; the person who draws up the papers is the secretary of the general meeting. The votes of the meeting participants are counted by the members counting commission of an apartment building. In the future, the chairman, secretary of the general meeting and members of the counting commission will be called responsible persons.
From this article you will learn:
- how to approach the selection of candidates;
- what powers do the responsible persons have;
- how often to elect them;
- what threatens the absence of an elected counting commission.
How to choose members of the counting commission
Requirements for those who can be elected as responsible persons of the general meeting are not established by law. Practice tells them.
Any individual or legal entity can be elected to the role of the responsible person of the general meeting, even if he is not the owner of the premises in this MKD. We recommend the MA and housing associations to propose their employees for election to the responsible persons of the general meeting. It is even better if these people are visually known to the owners of the premises in the MKD and are respected.
Let's deal with quantity. The chairman is one person, the secretary too. This may be the same person, but only for a "small" general meeting. For example, in MKD, where there are no more than 30 apartments. In a house with a large number of rooms, it will be difficult for the chairman of the meeting to keep minutes in parallel. The counting commission may consist of one or more people - the legislation does not regulate this either.
Remember that the success of the meeting and its legitimacy will depend on the competence of the responsible persons.
We do not recommend giving general meeting participants a wide choice. Suggest one, maximum two names for voting. A larger number of candidates will cause unnecessary confusion of the voters, who will require clarification: who is this, in what apartment does he live, why exactly he (she), etc.
You can download an example of the protocol on our website: Minutes of the general meeting of owners of premises in MKD
What are the powers of those responsible at the general meeting
The duties of the chairman, secretary of the general meeting, members of the counting commission are not defined by law. They are formed by a large practice of general meetings throughout the country.
The chairman is elected to lead the meeting of owners, and the secretary - to maintain and draw up the minutes.
Members of the counting commission are elected at the general meeting so that they count the votes of the participants and sum up the results of voting on each issue on the agenda. Members of the counting commission identify invalid decision forms and check the credentials of the representatives of the owners.
Based on the results of the meeting, the chairman, secretary and members of the counting commission who carried out the counting of votes sign the minutes of the meeting of owners. This is defined in par. 3–5 st. 181.2 of the Civil Code of the Russian Federation and clause 21 of the Requirements for the execution of minutes of general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated December 25, 2015 No. 937 / pr.
Question
Is it necessary to pay for the work of the chairman, secretary and members of the counting commission of an apartment building?
It does not provide for the remuneration of responsible persons at the general meeting of the RF LC. But such a decision can be made by the general meeting of owners of premises in the MKD. To do this, the owners must determine the amount of remuneration and the procedure for its payment. Put these items on the agenda for the shareholders' meeting. Include the costs of remuneration of responsible persons in the costs of financing the general meeting. This approach is consistent with the provisions of paragraph 3.5 of part 2 of Art. 44 LCD RF.
How they elect
The chairman and secretary of the general meeting, as well as members of the counting commission, are elected directly at the general meeting of owners of premises in the MKD. Such conclusions are confirmed in the Methodological recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated July 31, 2014 No. 411 / pr (hereinafter - Guidelines).
- The procedure for choosing a management company: an algorithm for the actions of owners
Question
Who will sign the minutes of the general meeting if the owners have not chosen a chairman, secretary or counting commission?
The minutes of the general meeting of owners of an apartment building must always be drawn up, and it must be drawn up according to the rules.
If the issue of electing the chairman, secretary of the meeting, members of the counting commission is included in the agenda of the meeting, but the owners rejected the proposed candidates, the minutes are signed by the initiators of the meeting. This is enshrined in clause 21 of the Requirements for the execution of minutes of general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated December 25, 2015 No. 937 / pr.
How often to elect members of the Audit Chamber
The Ministry of Construction of Russia recommends that the agenda of each general meeting include questions on the election of the chairman, secretary and members of the counting commission (clause 2, section VI of the Methodological Recommendations; see figure). But these issues will overload the agenda of future meetings and increase the risk of owners rejecting proposed candidates in the future.
To avoid this problem, you can define the duration of the powers of the elected persons. To do this, supplement the agenda with relevant issues. Since the term of office of responsible persons is not limited by law, the meeting can set any convenient period - for example, a year.
If the chairman or secretary, who has been elected for a certain period, cannot attend any meeting, simply put the question of electing other persons on the agenda. But if someone from the counting commission cannot participate, then its composition will need to be approved again.
Consequences of the absence of the chairman, secretary and members of the counting commission of an apartment building at the meeting
Information about the chairman, secretary and persons who counted votes at the meeting, as well as their signatures in the minutes, are mandatory details of the minutes of the general meeting of owners. If this information is not in the protocol, it means that it is issued with violations.
A significant violation of the rules for drawing up minutes, including the rule on the written form of the minutes, may lead to the invalidity of the decision of the meeting (subclause 4, clause 1, article 181.4 of the Civil Code of the Russian Federation).
The court, taking into account all the circumstances of the case, has the right to leave the decision in force if (part 6 of article 46 of the LC RF):
- considers that the absence of the signatures of the indicated persons in the protocol is not a significant violation;
- the decision did not result in damages to the owners who are appealing against it.
The governing body in the MKD is the meeting of all apartment owners. It makes key decisions regarding common property
Any owner of the premises in the MKD can initiate a meeting. This provision is enshrined in paragraph 2 of Art. 45 LCD RF. As a rule, an initiative group is created from among the owners. Its members form the agenda and deal with organizational issues.
First meeting
Based on the provisions of Art. 45 of the LC RF, all meetings, with the exception of the final annual, are considered extraordinary. Before convening the meeting, a preliminary meeting of the initiative group is held. Only owners of MKD premises can enter it.
At the first meeting of the group, the agenda is determined general meeting of owners of an apartment building, day and address of the event. It must be organized face-to-face. In other words, all owners should participate in it.
Based on the results of the meeting of the initiative group, a protocol is drawn up. It expresses the intention to hold, indicates its venue. The protocol also contains a list of issues to be discussed and other important points.
Important Points
Decisions of the general meeting of owners of an apartment building can be taken only on those issues that are reflected in the agenda. The meeting has no right to discuss other problems or change the list of issues. The relevant instructions are contained in article 46 of the LCD.
Given this, when developing the agenda of the meeting, it is necessary to formulate the issues proposed for discussion as accurately as possible.
Before holding a general meeting of owners of an apartment building it is necessary to obtain information about the tenants and the areas they occupy. The initiative group can request this information from management company.
Notification
To ensure a quorum, a notice must be sent to each tenant of the upcoming meeting. The notice must indicate:
- Information about the persons who initiated the procedure.
- The form of the meeting.
- The place, time, date or day on which the acceptance of decisions of the owners of the premises on the issues put to the vote ends, the address to which they must be transferred (if the meeting is organized in absentia).
- Rules for familiarization with the materials (information) that are supposed to be presented at the meeting, or the address where they can be found.
- Agenda.
Notification method
The initiative group should report on the upcoming general meeting of owners of an apartment building 10 days before the date of the event. Residents can be notified:
- By order letters. This method is considered the most effective.
- Handing notices to each tenant under the signature.
- By posting an ad
Together with the notice, it is advisable to send information letters to the tenants, which will contain explanations on the merits of the issues that are put to the vote. Such a letter can also be posted on the bulletin board.
face-to-face meeting
On the appointed day, the initiators meet the tenants at the appointed place. Residents have the right to send their representatives to the meeting. In this case, the powers of the latter must be confirmed by a power of attorney.
Information about the tenants present is entered into the registration sheets.
It must be said that the meeting can be considered eligible if the owners of the premises came to it, collectively having more than half of the votes of the total number. The number of votes that an owner may have is calculated in proportion to the share in the right to common property of an apartment building.
If for some reason it was not possible to gain a quorum, a protocol is drawn up about this. It is signed by the initiative group.
Key Procedures
On the first general meeting of owners of an apartment building must elect a chairman, secretary, form a commission for counting votes. The secretary is responsible for keeping minutes. When creating a commission, the number of its members is first approved, and then the specific persons included in it.
Familiarization with the decisions made
At the same time, the owners themselves must decide at what address and how the familiarization with the decisions will take place. Of course, this should be done in area of an apartment building. All apartment owners should have free access to such a place.
As a rule, a copy is posted on the bulletin board minutes of the general meeting. Apartment building owners, however, may decide that the results of the voting will be made known in the form of a notice sent to each tenant.
Storage of documentation
Regardless of the form in which the meeting of the owners of the premises was held, documents ( minutes of the general meeting of owners of an apartment building, etc.) must be stored in a location designated by residents. This rule is established by the LCD.
absentee voting
It is carried out if general meeting of owners of an apartment building did not reach a quorum.
The same issues are submitted for consideration by the tenants, only the form of decision-making on them changes. To implement the procedure, a meeting of the members of the initiative group is held. It discusses the form of notification of tenants, the delivery of forms with questions for voting. A protocol is also drawn up based on the results of the meeting.
As in the case of face-to-face voting, notification of owners is carried out 10 days before the start date for making decisions. When discussing in absentia, it is advisable to send a notice to each tenant. A form with questions should be attached to it.
Solution Form
- Full name of the subject participating in the voting.
- Details of the document (certificate) certifying the ownership of the living space in the MKD.
The forms should also contain fields opposite each question with the options "for", "against" or "abstained".
Reception and processing of forms
Decisions of the owners on the issues raised are made at the address indicated in the minutes of the meeting of the members of the initiative group. It is advisable to duplicate the place of reception in each form. In addition, milestones should be specified.
The processing of received forms is carried out by the counting commission. Upon completion of the procedure, the results of the voting are made public.
Features of the design of decisions
Forms will have legal significance, in which for each question only one answer option from those presented is selected. Decisions drawn up with violations are considered invalid.
If there are several questions on the form, non-compliance with the established requirement with respect to some of them will not entail invalidation of the remaining decisions.
The publication of the results is carried out according to the same rules that are provided for in-person voting. The message may be posted on a bulletin board or sent to each tenant in the form of a letter. The notice period is also equal to 10 days from the date of the final vote count.
The Ministry of Construction has issued Guidelines on the application of the provisions of the LCD. They contain several appendices, which provide exemplary standard forms forms with questions, minutes and other documents drawn up during meetings. They can be taken as a basis, supplemented, changed in accordance with the needs of the residents of a particular apartment building.
What can owners discuss?
Issues relating exclusively to the MKD may be placed on the agenda of the meeting. In particular, the following may be discussed:
- Reconstruction of a structure (including those associated with a superstructure or expansion), construction of outbuildings and other buildings, buildings, repair, rules for using the overhaul fund.
- The choice of a method for creating a capital repair fund, the amount of the contribution in terms of its excess over the established minimum standards. The latter is discussed if relevant indicators are established by regional legislation.
- The choice of a specific person responsible for opening a special account and carrying out settlement operations with the funds on it.
- Issues of obtaining a loan/credit for overhaul by a partnership of owners or a housing cooperative (HBC) or other specialized consumer cooperative, a managing organization, an authorized person (if management is carried out exclusively by the owners of housing). At the same time, the general meeting may determine the need for a guarantee, obtaining a guarantee by the specified responsible entities. The owners are discussing the rules for repaying the loan at the expense of the overhaul fund, paying interest and expenses for obtaining guarantees and guarantees.
- Limits of use of the adjoining territory of an apartment building. The owners of the premises can set restrictions for unauthorized persons (within the framework of the law). In addition, the general meeting has the right to discuss issues related to the improvement adjoining territory apartment building, sources of funds for the relevant work.
- Use limits common property outsiders. In particular, the general meeting has the right to discuss the conditions for providing elements of an apartment building for placing advertising structures, concluding contracts with companies that install and operate them.
- Appointment of persons responsible for concluding agreements with third parties on the use of MKD property, including the installation and operation of advertising structures on the terms established by the owners of apartments in the house.
- Questions about the use of information or other, including automated systems when organizing and conducting absentee voting, appointing persons responsible for this.
- Choosing the method for receiving by an authorized person (meeting administrator) messages about organizing and holding meetings of owners, decisions made by apartment owners on issues raised in voting forms, the duration of the period for making certain decisions during absentee voting.
- Owners have the right to entrust HOA management, management company or carry it out independently.
- Questions regarding the conduct current repair buildings, engineering communications, other elements of an apartment building.
- Other issues related to ensuring the normal functioning of the MKD, referred by the JK to the competence of the governing body.
To approve decisions under paragraphs 1-7, at least 2/3 of the votes of the total number of residents participating in the meeting are required. For other issues, a majority vote is sufficient.
Meaning of Meetings
Although in most cases the control apartment buildings entrusted to the housing cooperative or the management company, a joint discussion of problems related to the functioning of the MKD does not lose its relevance.
The owners of the premises solve many issues: from roof repairs to the construction of outbuildings. Residents can set the amount of the overhaul fee themselves. It should not be less than the regional standard (if it is established), but may be more than it.
Particularly relevant are issues related to the use of the territory adjacent to the house. There are often disputes between neighbors about parking cars, walking dogs. It is advisable to resolve all these issues once at a general meeting than to constantly enter into conflicts.
The owners can jointly, in a coordinated way, distribute among themselves the responsibilities associated with maintaining cleanliness in the entrances, on the landings. Often there are conflicts between smokers and non-smokers neighbors. At the meeting, residents can determine a ventilated area for smokers, establish rules for placing strollers, bicycles and other items that are often used in common areas.
Finally
AT recent times people began to be more active in resolving issues related to the house in which they live. Conducting an in-person meeting, however, is more difficult than absentee voting. As a rule, pensioners are permanent participants, since they are not burdened with work, they have more free time.
However, general meetings are necessary. They keep residents up to date. The main thing is to form initiative group of energetic, active people. Well, if in composition will enter lawyer. He will be able to become a representative of tenants in various instances, including judicial ones. This is of particular importance when implementing decisions related to in cash. Open an account in which the savings of residents will be stored, conclude agreements on behalf of all owners with banking organization, to carry out payment transactions should be a person who is trustworthy.
Usually in each entrance there is an active tenant, ready to defend the interests of all owners. It is possible to form an initiative group from just such people: one from each entrance (if there are several of them). If there is only one entrance, then one or two active citizens are quite enough. In many houses, management is carried out exclusively by residents. This significantly saves the owners' money, since it does not need to pay any third-party organization for this.
This article will be useful to you if you are wondering how to choose the right chairman of the general meeting of owners, secretary and counting commission.
You will find out if there are any requirements for the listed candidates and whether their election should be placed on the agenda of each meeting.
The issue of choosing the chairman of the general meeting on the agenda
- Chairman of the OSS
- OSS Secretary,
- counting commission OSS.
If you do not want to include these issues on the agenda every time, you can not include them. In this case, at one of the previous meetings, decide that the people selected for these positions will retain their positions for a certain time. For example, for a year or for the next few meetings.
If the chairman or secretary, who has been elected for a certain term, cannot be present at any meeting, the issue of electing other people is included on the agenda. If someone from the counting commission does not get to the meeting, then its composition is approved again.
If the owners of the OSS reject the proposed candidates for the chairman, secretary of the meeting and members of the counting commission, the minutes are signed by the initiator of the meeting (clause 21 of the order of the Ministry of Construction of the Russian Federation dated 01.28.2019 No. 44 / pr).
Recall that the agenda also always includes:
- a list of issues to be considered by the meeting;
- the question of the place of storage of protocols and other documents related to the conducted OSS. This issue can be resolved once and not included in the agenda of the next meetings.
Requirements for the candidacy of the chairman of the OSS
The legislation does not impose any requirements on the candidacy of the chairman, secretary of the general meeting and members of the counting commission, and on the procedure for their election. But still they are elected from among the owners of the premises in the MKD.
The Ministry of Construction of the Russian Federation explained that the composition of the counting commission may include the chairman of the meeting and the secretary, since the composition of the counting commission is determined by the decision of the owners.
The Ministry of Construction of the Russian Federation recommends that the initiator determine candidates for the counting commission in advance in preparation for the general meeting of owners (order of the Ministry of Construction of the Russian Federation dated July 31, 2014 No. 411 / pr).
The duties of the chairman, secretary of the general meeting and members of the counting commission are also not defined by law. The chairman leads the meeting, the secretary draws up and draws up the minutes, the counting commission counts the votes of the participants and sums up the results of voting on each issue on the agenda.
In addition, members of the counting commission identify invalid decision forms and check the credentials of the owners' representatives. Following the results of the meeting, the chairman, secretary and members of the counting commission sign the minutes of the OSS (
