The state of the common property of residents in apartment houseThe order of care for it and many other issues should solve the owners of the premises. This requires a special management body - a collection of owners. In order for its decisions to be legitimate, it is important to comply with the procedure for its formation and work established by law.
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General meeting - This is an independent management of apartment owners and commercial premises Apartment house (MKD).
The provisions adopted by him, the rules are obliged to observe all the owners of the premises and tenants.
Law
The collection of premises owners is the highest management body in the life activity of the MCD in accordance with paragraph 1. The same norm is determined that it is carried out by consideration and solving relevant for tenants, problems.
The basic requirements for the management of the MKD are enshrined.
According to its provisions, the management of the MKD is the activity of the owners of the premises and those who are managed by them by:
- creating safe and comfortable living conditions in the house;
- ensuring the proper content of joint property and the use of them;
- providing utilities services that meet established standards and standards.
Legitimate is considered to be a meeting when adopting the participation of apartment owners or their delegates who have voices over 50% (Part 1 of Art. 44, Part 1, 3). His findings are made to the most part of the votes of persons participating in the meeting.
Competence of the General Assembly of the Owners of the Apartment House
The empowerment and obligations of the meeting are established by the Housing Code.
In paragraph 2 of Art. 44 LCD RF Dan is the current list for 2020, which is conditionally divided into the following groups of issues:
- On managing the general property of the MKD.
- According to the financial and economic part.
- According to administrative and economic activities.
What is included?
In the field of management joint property Competence of the General Assembly of Owners apartment house includes consideration of such issues:
- mKD reconstruction (including add-on, expansion), erection of economic buildings and other structures, overhaul and spending the fund formed for him;
- on the framework of the use of land on which house is located, including the establishment of restrictions in its operation;
- on the use of the common property by persons who are not owners of premises or the inhabitants of the ICD, for example, on the installation of advertising structures;
- on the provision of the Council of MCD rights to the organization of internal and external operational repairs.
In the financial and economic field, the meeting of residents is competent in the choice:
- options for the formation of the Foundation to the overhaul of the house and the necessary amounts of contributions to it;
- forms of financing costs for convening and conducting their work.
The competence of the general meeting of the owners of an apartment building in the field of administrative and economic activities includes consideration of the issues:
- about application information systems For correspondence assemblies;
- on determining the circle of persons eligible to use such information systems;
- on the procedure for admission by a specialist information about meetings, duration of votes developed by decisions;
- on the provision of competence to the Council in addressing the issues of operational repairs;
- on the provision of the Chairman of the Council for the Rights Display, not provided for by Part 5 of Art. 161.1 LCD RF.
Order of conduct
The general meeting of housing owners in the MKD is carried out in the following order:
- At the first stage, preparation is underway.
- Next, tenants are informed of the scheduled event.
- The main stage lies directly in the voting.
- At the final stage, the results of the meeting were recorded.
Basis
The general meeting must be carried out according to the rules defined by the LCD of the Russian Federation. Otherwise, its solutions will not be valid.
The Code provides for the assembly of the owners of the premises in the Ministry of Consult of the two species:
- The first is an annual. In accordance with it, it should be collected in the second quarter of the year coming in the reporting year. And the responsibility for his pass is not established. Consequently, there is no obligation in it.
- The second appearance is an extraordinary meeting. His time for the law is not limited. Any property owner in the MCD may initiate such an event.
Fixing results
The decisions taken on the vote are recorded in. Make them need for 10 days. The initiator must provide this copy of the protocol and applications to it in managing company (ECC, HOA, etc.), which no later than 5 days transmits them to the housing inspection.
On the results of the meeting within 5 days the initiator must inform the owners of the premises. It can accommodate the appropriate ad in the place available for all residents defined at the meeting.
Is it possible to challenge?
The owner of the apartment is entitled to challenge the voting results at the General Meeting, if the procedure for its organization or conduct is violated.
LCD of the Russian Federation to each owner of the premises is given the right to appeal to the court if he:
- did not participate in the meeting;
- voted against the contested result (paragraph 6).
You can submit an application to the court within six months since it became aware of the decision or when the owner had to learn about it.
The court has the right to leaving the emergered solution in the following cases:
- the plaintiff's voice could not affect the voting result;
- violation is not significant;
- the contested decision does not entail losses for the applicant.
According to Art. 181.4 of the Civil Code of the Russian Federation to challenge solutions to the grounds are:
- non-compliance with the prescriptions of laws;
- the assumption of a significant violation in the organization or during the event, which was evident in the voltage of participating persons;
- the lack of rights among the representative of the participant;
- violation of the equality of the rights of citizens who participated in the event during its implementation;
- the case of a serious violation of the rules for fixing the resulting document, including the application of writing.
The decision of the meeting can be recognized as insignificant if:
- concerns the problems not included in the agenda (with the participation of all owners of the MCD premises);
- there was no sufficient quorum;
- concerns those who are not related to the powers of the General Meeting of the Owners of the Apartment House;
- it has a contradiction with the basics of morality or law enforcement (Art. 181.5 of the Civil Code of the Russian Federation).
The lawsuit is drawn up on the initiator of the event. In accordance with Part 6 of Art. 181.4 of the Civil Code of the Russian Federation to appeal to court the applicant must inform all participants about his intention with the provision of available information that belongs to the case. To do this, send custom letters or personally collect signatures about the notification.
1. The owners of the premises in an apartment building are obliged to conduct an annual general meeting of the owners of premises in an apartment building. Unless otherwise established by the general meeting of the owners of premises in an apartment building, the annual general meeting of the owners of the 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. In addition to the Annual General Meeting, the general meetings of the owners of premises in an apartment building are extraordinary. An extraordinary general meeting of the owners of premises in an apartment building can be convened on the initiative of any of these owners.
3. The general meeting of the owners of the premises in an apartment building is competent (has a quorum) if the owners of the premises in this house or their representatives who have more than fifty percentages of votes from the total number of votes have been attended, with the exception of the general meeting of the owners of the premises in an apartment building, held on the issue specified in paragraph 4.5 of Part 2 of Article 44 of this Code. In the absence of a quorum for holding an annual general meeting of the owners of premises in an apartment building, a repeated general meeting of the owners of premises in an apartment building should be held. The general meeting of the owners of premises in an apartment building, held on the issue specified in paragraph 4.5 of Part 2 of Article 44 of this Code, competently (has a quorum):
1) if there are more than one entrance in an apartment building in the total meeting of the owners of premises in an apartment building, the owners of premises in this apartment building or their representatives who have more than fifty percentages of votes from the total number of votes of the owners of the premises in this apartment building , including the owners of the premises in an apartment building, in the entrance of which there is a translated premises, possessing more than two thirds of the votes from the total votes of such owners;
2) in the presence of one entrance in an apartment building in the event that the owners of premises in this apartment building or their representatives who have more than two thirds of the votes from the total number of guests of the premises in this apartment building took part in the general meeting of the owners of premises in an apartment building.
(see text in the previous edition)
3.1. Managing organization, board of household owners, housing or housing and construction cooperative, other specialized consumer cooperatives are obliged to keep the register of the owners of premises in an apartment building, which contains information to identify the owners of the premises in this apartment building (last name, first name, patronymic (if available) the owner of the room in an apartment building, the full name and the main state registration number of a legal entity, if the owner of the room in an apartment building is a legal entity, the room number in an apartment building, whose owner is a physical or legal person), as well as information about the size of the share owners in them right common property On the common property of the owners of the premises in an apartment building. Upon admission to the management organization, the board of the partnership of the owners of housing, housing or housing and construction cooperative, other specialized consumer cooperative in writing, including the use of the system, the owner or other person specified in this article, on the initiative of which the general convener is convened Assembly of the owners of premises in an apartment building, about providing the register of owners of premises in an apartment building, these persons are obliged within five days from the date of receipt of such an appeal to provide the owner or otherwise specified in this article, this registry. The consent of the owners of premises in an apartment building for the transfer of personal data contained in the register of owners of premises in an apartment building, when providing this registry in the manner prescribed by this part, in order to convene and organizing the general meeting of the owners of premises in an apartment building is not required.
4. The owner, another person specified in this Code, on the initiative of which the general meeting of the owners of premises in an apartment building is convened, must inform the owners of the premises in this house to hold such a meeting no later than ten days before the date of its holding. At the specified period, a report on the general meeting of the owners of the premises in an apartment building should be sent to each owner of the premises in this house by registered mail, if the decision of the general meeting of the owners of the premises in this house does not provide for a different way of sending this message in writing, or awarded to each owner of the premises In this house, the painting is either placed in the premises of this house, determined by such a solution and accessible to all owners of the premises in this house.
(see text in the previous edition)
5. In a report on the general meeting of the owners of premises in an apartment building should be indicated:
1) information about the person, on the initiative of which this meeting convenes;
2) form of this meeting (full-time, correspondence or part-time voting);
(see text in the previous edition)
3) date, place, time of this meeting or in the case of this meeting in the form correspondence vote the end date of the decisions of owners on issues posed on the vote, and the place or address where such decisions should be transmitted;
4) the agenda of this meeting;
5) Procedure for familiarization with information and (or) materials that will be presented at this meeting, and place or address where you can familiarize yourself with them.
6. Owners who have no less than ten percent of the votes from the total votes of the owners of the premises in an apartment building, have the right to appeal in writing to the managing organization or the board of the partnership of the owners of housing, housing or housing cooperative, other specialized consumer cooperative for the organization of the general Meeting of owners of premises in an apartment building. In the appeal of the general meeting of the owners of premises in an apartment building, issues should be formulated to contribute to the agenda of the meeting. For the appeal of the owners of the management organization, the board of the partnership of the owners of housing, housing or housing and construction cooperative, other specialized consumer cooperatives are obliged to implement the activities necessary for the general meeting of the owners of the premises in an apartment building, within forty-five days from the date of receipt, but no later than than ten days before the date of the General Meeting, notify the holding of this general meeting of each owner of the premises in this house in the prescribed manner, as well as arrange required documents According to the results of this General Meeting and ensure that the owners of the premises in this house are in accordance with the procedure established by Part 3 of Article 46 of this Code.
7. The general meeting of the owners of the premises in an apartment building can be convened at the initiative of the management organization, which controls this multi-family house under the management treaty. At the same time, the agenda of such a meeting may include issues related to this Code to the competence of the general meeting of the owners of premises in an apartment building.
1. The general meeting of the owners of the premises in an apartment building is the management body of a multi-apartment house. The general meeting of the owners of premises in an apartment building is held in order to manage an apartment building by discussing the issues of the agenda and making decisions on the issues posed on the vote.
1.1. Persons who adopted from the developer (persons providing the construction of an apartment building) After issuing permission to enter an apartment building into operation in this house under the transfer act or other transfer document, it is entitled to take part in the general meetings of the owners of the premises in an apartment building and make decisions On issues related to this Code to the competence of the general meeting of the owners of premises in an apartment building, in the manner prescribed by this Code, during the year from the date of issuing permission to enter an apartment building into operation.
2. The competence of the general meeting of the owners of premises in an apartment building includes:
1) Decisions on the reconstruction of an apartment building (including with its expansion or superstructure), construction of household buildings and other buildings, buildings, structures, major repairs of common property in an apartment building, about the use of the capital repairs fund, reorganization and (or) redevelopment of the room included in the composition of the common property in an apartment building;
1.1) decision-making on the choice of a method for the formation of a capital repairs fund, choosing a person authorized to open a special account in the Russian credit organization, performing operations with cash, which are in a special account;
1.1-1) making decisions about the amount of the contribution to overhaul In terms of exceeding its size over the established minimum contribution size on the overhaul, the minimum size of the capital repairs fund in terms of exceeding its size over the minimum size of the capital repairs fund (in case the law of the subject Russian Federation installed minimum size capital repairs), placement of temporarily free funds for the capital repairs found at a special account, at a special deposit in the Russian credit institution;
1.2) Decision making on obtaining housing owners by housing and construction cooperative, housing cooperative or other specialized consumer cooperative, managing organization and directly managed by an apartment building owners of premises in this house, an authorized decision of the general meeting of such owners, credit or loan to capital Repair of common property in an apartment building, about determining significant conditions loan agreement or loan agreement, on obtaining guarantees, guarantees, guarantees on this loan or loan and conditions for obtaining these guarantees, guarantees, as well as redeeming the capital repairs of a loan or loan used to pay for the cost of capital repairs of common property in a multi-factor house , and the payment of interest for using the credit or loan, payment due to the capital repairs fund of the costs of obtaining these guarantees, guarantees;
2) making decisions about the limits of use land plotwhere the apartment building is located, including the introduction of restrictions on the use of them, as well as to conclude an agreement on the establishment of a servitude, an agreement on the implementation of a public servitude in relation to a land plot related to common property in an apartment building;
2.1) The decision-making on the improvement of the land plot on which the apartment building is located and which refers to the total property of the owners of the premises in an apartment building, including the placement, on the maintenance and operation of elements of landscaping and improvement in the specified land plot;
3) decision-making on the use of the common property of the owners of premises in an apartment building by other persons, including the conclusion of contracts for the installation and operation of advertising structures, if they are supposed to use the common property of the owners of the premises in an apartment building;
3.1) Decisions on the definitions of persons who, on behalf of the owners of premises in an apartment building are authorized to conclude agreements on the use of the common property of the owners of the premises in an apartment building (including contracts for the installation and operation of advertising structures), to submission of documents for coordination of reorganization and ( or redevelopment of the room included in the general property in an apartment building, to conclude an agreement on establishing a servitude, the implementation of a public servitude in relation to the land plot related to the common property of the owners of the premises in an apartment building, and the persons authorized to sign these agreements , as well as on the procedure for receiving moneystipulated by these agreements on the terms determined by the decision of the General Assembly;
3.2) Decisions on the use of a system or other information systems during the general meeting of the owners of premises in an apartment building in the form of correspondence voting;
3.3) Decisions on the definitions of persons who, on behalf of the owners of premises in an apartment building are authorized to use a system or other information systems when conducting a general meeting of the owners of premises in an apartment building in the form of correspondence voting (hereinafter - the administrator of the General Assembly);
3.4) Deciding on the procedure for admission by the administrator of the General Meeting of Messages to hold general meetings of the owners of premises in an apartment building, decisions of the owners of premises in an apartment building on issues made to vote, as well as the duration of voting on the agenda of the general meeting of the owners of premises in an apartment building in the form of correspondence voting using the system;
3.5) Deciding on the procedure for financing the costs related to the convening and organization of the management organization, the Board of Housing Association, Housing or Housing and Construction Cooperative, other specialized consumer cooperative of the General Assembly in accordance with;
4.1) decision-making on current repairs common property in an apartment building;
4.2) Deciding on the entry of the Council of the Apartment House with authority to make decisions on the current repair of common property in an apartment building;
4.3) The decision to endow the Chairman of the Council of the Apartment House for making decisions on issues not specified in, except for the authority attributed to the competence of the general meeting of the owners of the premises in an apartment building;
4.4) Deciding on the owners of premises in an apartment building, operating on its own behalf, in the manner established by this Code, respectively, the Cold and Hot Water Supplies Agreement, Washing, Power Supplies, Gas Supply (including the supply of household gas in cylinders), heating (heat supply , including delivery solid fuel in the presence of furnace heating) (hereinafter also - a contract containing provisions communal services), contract for the provision of services for the treatment of solid communal waste with a resource-supplying organization, a regional operator for the treatment of solid communal waste;
4.5) Decision of agreement on the transfer of residential premises into a non-residential premises;
5) other issues related to this Code to the competence of the general meeting of the owners of premises in an apartment building.
Comment to Art. 44 LCD RF.
1. The multiplicity of subjects of ownership of the same property implies the need to harmonize their will (paragraph 1 of Art. 246, paragraph 1 of Art. 247 GK,). When the number of such subjects is small, the possibility of an insurmountable conflict of interest is less likely, and the achievement of the management of property in their common ownership is mainly not much of greater difficulties and does not require the establishment of a special form of coordination of their free and decision-making on such management. At the same time, this control that allows the neglected composition of the owners to manage activities aimed at preserving, maintaining and developing a management facility does not always require a special body that implements such management.
2. Privatization of the Housing Fund in the Russian Federation has created a situation when most apartment houses Do not have one owner. Such homes, as a rule, consist of a variety of rooms located on the right of ownership of citizens, legal entities, Russian Federation, subjects of the Federation, municipalities, which significantly complicates the management of common property in such houses. Taking into account this circumstance, the commented article establishes the specified special form of coordination and decision-making in the form of a general meeting of the owners of premises in an apartment building, and also defines such a general meeting as an apartment building.
3. The general meeting of the owners of the apartment buildings as an apartment building is the only such body and exists throughout the "life" of the house as an apartment building - as long as there is a legal relationship between the owners of the premises in this house about the common property in it. The exception is perhaps only one case, when all the rooms in an apartment building belong to one owner (see).
4. The general meeting of the owners of the premises in an apartment building as a management body has a historical retrospective.
Until 1917, the Housing Foundation was mainly on the right of ownership of homeowners, i.e. The houses belonged, as a rule, a narrow circle of owners, between which there were no sustainable legal ties based on the right of common property. At 80%, the housing fund of the cities of Russia consisted of one-story wooden and small-sized houses owned by citizens. Therefore, the management of the houses carried out their owners independently either through their governors, and the general meeting of the owners as the management body was not in demand.
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See: Dmitriev N. Housing Question. Two worlds - two approaches. M., 1973. P. 71.
After 1917, the decree of the Central Executive Committee of August 20, 1918 "On Cancellation of the right private property For real estate in cities »The main part of the housing foundation, which was in private ownership, was nationalized and transferred to local councils, which were entrusted with the costs associated with the content of municipal houses. However, local councils to which the entire municipal housing fund passed due to the lack of financial opportunities They were not able to maintain it in proper condition, to produce overhaul, etc. At the same time, the resettlement of tenants from one room was widely practiced during the disposition of housing bodies, the possibility of forced sealing residents and the associated lack of confidence in the future accommodation in This room reduced the interest of residents in the proper content of the room occupied, in the manufacture of repair. In the aggregate, all these factors have a pernicious effect on the preservation of the housing stock. For example, in the first years soviet power In Moscow, 7 thousand apartment buildings consisting of 41 thousand apartments turned out to be destroyed or fell into full. Therefore, in order to prevent the destruction of houses that have achieved threatening sizes, SNK RSFSR was published on May 23, 1921. Resolution "On measures of improvement housing conditions Worker population and about measures to combat the destruction of housing. " According to this decision, the relevant departments were entrusted with the shortest possible time to develop a provision for the management of houses in cities with the possession of responsibility for safety. residential premises on house management. Residential residents in the House of Office should be involved in the work of the household administration.
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SU RSFSR. 1918. N 62. Art. 674.
SU RSFSR. 1921. N 49. Art. 253.
This laid the foundation for the management of house management, including through decision-making by residents of a particular home at their general meeting. However, in contrast to the legal nature of the general meeting of the owners of the premises in an apartment building legal Nature The general meeting of tenants was essentially different. The legal relationship of persons participating in such meetings did not arise on the basis of the right of common property, and was based on the use of residential premises (living in it).
The management of the houses in the ultimately approved SNK RSFSR on August 8, 1921 and provided for the laying on the general meeting of residents to solve a number of issues related to the management of the house. In particular, by decision of the annual general meeting of tenants, the head of the house was elected for a period of one year, which during this period was directly managed by home on an ongoing basis; The general meeting of residents also considered issues related to the reimbursement of expenses for the current repairs of the house, the remuneration of the head of the house, early removal of the head of the house from home management in the event of the inadequate fulfillment of their duties, consideration of estimates for heating costs and solving many other problems.
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Ibid. N 60. Art. 411.
5. Over the past decades, the management of the most part of apartment buildings formed local government bodies. The owners of premises in apartment buildings were essentially removed from the management of their homes, which led to the widespread ignoring of the rights of such owners to participate in decision-making related to issues, use and orders with common property in relevant apartment buildings (when in most cases such decisions were taken by housing and operational organizations without the legal interests of the owners); to the predominance of administrative business methods, municipality (essentially monopolizing) the scope of management of apartment buildings; To the absence of economic and organizational prerequisites for the development of other forms of management of apartment buildings.
The concept of "Housing Fund" The concept of "Housing Fund" was founded on the fact that such a management was generally carried out exclusively by state or local authorities (Art. Art. 16, 17 LCD RSFSR), and directly - housing and operational organizations whose role was reduced Mostly to the "operation and content of the housing stock" (Art. Art. 22, 129, 141, 144, 148 LCD RSFSR, etc.). Continuing to be applied during the active formation of property in the housing sphere The management system of apartment buildings was not able to consider that most of the apartment buildings no longer belonged to the state and new realities economic relations Required not only accounting for the rights and legitimate interests of the owners of premises in apartment buildings, but also to protect their ownership of common property in apartment buildings, guaranteed primarily by the Constitution of the Russian Federation.
6. The principle of management of a multi-family house in the commented article, when the general meeting of the owners of the premises in this house is called the main and only body of such management, is designed to fundamentally change the situation in the field of management of apartment buildings.
7. The general meeting of the owners of premises in an apartment building as a management body has its own competence. The nature of such a competence is again associated with the regime of ownership of owners for general property in an apartment building. At the same time, the components of the competence of the general meeting of the owners of the premises in an apartment building can be characterized as organizational and property and legal.
The organizational procedure should include the definition of the main areas of general property management in an apartment building, including the choice of a method of management, managing organization, making decisions on the establishment and elimination of the partnership of housing owners, about the timing and procedure for holding annual general assembly of such owners, etc.
Property-legal components of the competence of the general meeting of the owners of premises in an apartment building include making decisions on the procedure for use in set limits - about disposal of common property in an apartment building, about establishing fees for services and work on the management of an apartment building, about the content and current repair of common property in an apartment building, the amount of payment for capital repairs of an apartment building, about determining the conditions for the management agreement of the apartment building and T .P.
8. The Housing Code of the Russian Federation allocates the exclusive competence of the General Assembly of the owners of the premises in an apartment building. In particular, the mention of such competence is contained in.
The exception is manifested in the fact that decisions on individual issuesRelated LCD to the competence of the general meeting of the owners of the premises in an apartment building cannot be accepted by another body or face (the general meeting of members of the partnership of housing owners, the Board of such a partnership, a managing organization, etc.).
If, on some issues of the competence of the general meeting of the owners of premises in an apartment building of the LCD, the LCD of the Russian Federation provides for the possibility of decision-making by another body, for example, the general meeting of members of the partnership as a senior authority of the Office of such a partnership in terms of deciding on renting or transferring other rights to the general property in the apartment building The house, then decisions on issues such as the choice of a method of managing an apartment building and the creation of a home owner partnership can be accepted only by the general meeting of the owners of premises in an apartment building.
Common, which is characteristic of the issues of exceptional competence of the meeting, is the fundamentality of these issues, the long-term action of decisions taken on them, the inability without prejudice to the interests of the owners to solve them in a different order.
9. Commented Article 44 of the LCD RF directly determines the list of issues related to the competence of the general meeting of the owners of the premises in an apartment building. At the same time, this list is essentially closed, because, despite the fact that it is not all issues of this competence, other may be provided for only the LCD of the Russian Federation.
10. Paragraph 1 Part 2 of the commented article refers to the competence of the general meeting of the owners of the premises in an apartment building, making decisions on the reconstruction of an apartment building (including its expansion or add-on), construction of household buildings and other buildings, buildings, structures, repair of common property in an apartment building.
11. Currently, the LCD RF directly provides that the decision on the reconstruction, repair of an apartment building, its re-equipment can be accepted only by the owners of the premises in an apartment building at their overall meeting.
The imperativeness of this provision necessitates the impossibility of its free interpretation and decision-making on the issues of the issues that are not specified by the owners. At the same time, if the planned reconstruction of the apartment building will lead to a decrease in the size of the common property in this house, then taking into account the decision of the general meeting of the owners of the premises in this house must be adopted unanimously by all these owners or unanimously with all owners participating in the meeting, with preliminary Prior to this General Meeting by obtaining consent in writing not participating in the meeting of owners to such a reconstruction (see Commentary of Art. Art. 36 and 40 LCD). It also applies to cases when one of the co-owners without the permission of others conducts a restructuring of common property in an apartment building, especially if it leads to a decrease in this property. Other co-owners have the right to demand to bring the common property to the previous state. The corresponding requirement may be declared in accordance with Art. 304 of the Civil Code of the Russian Federation.
If anyone from the owners of the premises in an apartment building is deprived of the possibility of using some kind of common property, including access to it (for example, to the attic of the house), i.e. Delicious ownership, he has the right to declare a claim for the extermination of the thing (Art. 301 of the Civil Code). Such a claim may be charged to any of the owners of the premises in this house, if he owns this part of the property and to third parties. At the same time, if the Wizard's claim is declared a third party (illegal owner), then it is considered declared in the interests of all owners of premises in such a house. The satisfaction of this claim does not predetermine the question of using common property, but only ensures the possession of the plaintiff by common property, for example, gives the right to pass to the attic.
12. Quite ambiguously formulated in paragraph 1 of Part 2, the competence of the general meeting of the owners of the premises in an apartment building regarding the possibility of making decisions about the construction of household buildings, other buildings, buildings and structures. The ambiguity is manifested in the fact that, firstly, it is simultaneously being specified, on which land plot such a construction will be carried out, and, secondly, it is not specified for the purpose of these objects.
At first glance, it may seem that the general meeting of the owners of the premises in an apartment building is entitled to make a decision, for example, about construction on a land plot, which does not apply to the general property in such a house, office building or other apartment building.
However, we should not forget that in accordance with Part 1 of the commented article, the general meeting of the owners of the premises in an apartment building is its management body - the form of coordination of their free and decision-making on the management of common property in this house, and the nature of the competence of this meeting is based on the right mode The property of these owners to the named property.
Accordingly B. this case We can talk about making decisions about the construction of household buildings, buildings, buildings, structures only in the framework of the formation and improvement of the parameters of common property in an apartment building.
In accordance with the general property, the apartment building includes, in particular, the land plot on which the house is located, with elements of landscaping and improvement, as well as objects located on the specified land plot and intended for service, operation and improvement of this house. Therefore, the decision of the general meeting of the owners of the premises in an apartment building in terms of the competence under consideration of this meeting may be due to construction only in the established boundaries of the land plot, which is part of the common property in the specified home, and only those household buildings, buildings, structures, structures that will be Designed for service, operation and improvement of this house.
13. Paragraph 2 of Part 2 of the commented article 44 of the Housing Code of the Russian Federation to the competence of the general meeting of the owners of the premises in an apartment building, issues related to making decisions about the limits for the use of the land plot on which a multi-apartment building is located, including the introduction of restrictions on the use of this site .
This competence of the general meeting of the owners of premises in an apartment building is due to the fact that, in contrast to the previous legislation, the LCD of the Russian Federation took the land plot on which the apartment building is located, with elements of landscaping and improvement to the common property of the owners of the premises in an apartment building (see Commentary of Art . 36 LCD). At the same time in accordance with Art. 16 of the introductory law to the LCD of the Russian Federation in the existing building of the settlements of the land plot on which the apartment houses and other objects are located in this house real Estate, is a common share owner of the owners of premises in an apartment building; This article regulates two cases: when the land plot is already formed at the time of the introduction of the LCD of the Russian Federation and when its formation is required. In the first case, the land plot is free of charge in the total share ownership of the owners of the premises in an apartment building due to the instructions of the law. In the second case, on the basis of any person authorized by the said meeting, to apply to state authorities or local governments with a statement on the formation of a land plot on which a multi-apartment building is located. Since the formation of a land plot and conducting its state cadastral accounting, such a plot also goes free of charge in the total share ownership of the owners of the premises in an apartment building.
Named owners are entitled to implement their perpetrators to hold, use and dispose of such a plot within the limits established by the legislation, including the LCD of the Russian Federation, in terms of restrictions on the regime of the Order of the General Property in an apartment building.
14. Articles 6 and 11.1 of the RF RF determines the land plot as an object of land relations - part of the earth's surface, the boundaries of which are defined in accordance with federal laws. According to paragraph 2 of Art. 261 of the Civil Code of the Russian Federation the right to ownership of the land area extends to the surface (soil) layer in the boundaries of this section, water objects, plants.
In a relationship land plots In the order established by the law on the real estate cadastre, state cadastral records are carried out. The state cadastral consideration of real estate recognized the actions of the authorized body to enter into a state real estate certification of information about real estate, which confirm the existence of such real estate with characteristics that allow this property as an individually defined thing.
The City Planning Code of the Russian Federation in order to determine the procedure for establishing the boundaries and types of permitted use of land plots in settlements provides for the adoption of urban planning regulations (sets within the boundaries of the relevant territorial zone Types of permitted use of land plots, as well as everything that is above and under the surface of land plots and is used in The process of their development and subsequent operation of objects capital construction, limit (minimum and (or) maximum) dimensions of land and limit parameters of permitted construction, reconstruction of capital construction facilities, as well as restrictions on the use of land plots and capital construction sites) (Article 1).
The Housing Code of the Russian Federation, in turn, establishes that the boundaries and the size of the land plot on which the apartment building is located, are determined in accordance with the requirements of land legislation and legislation on urban planning activities (paragraph 4 of Part 1 of Art. 36).
15. The empowerment of the land plot as an element of the content of property rights means enshrined by law the possibility of economic exploitation of such a plot by extracting its useful properties.
Such properties for the owners of premises in an apartment building are primarily the possibility of placing elements of landscaping on the land and intended for service, operation and improvement of such a house of objects, as well as the establishment of restrictions on these areas by other persons. Therefore, under the limits of use of the land plot, the establishment of the use of both individual parts of such a plot and the site as a whole, determining the purpose of the specific area of \u200b\u200bthe land plot, the establishment of restrictions on the use of land by other persons, etc. In particular, the situation often arises when one group of owners in an apartment building is interested in placement of parking for its vehicles, the other - in the allocation large Square Under the playgrounds, the third - in planting wood-shrub plantings, the fourth - in the construction of the fence around the house and restrict the free access to the site of the persons who are not related to the house of persons. It is possible to solve all these and other issues related to the use of land, by making decisions by the general meeting of the owners of the premises in an apartment building.
16. Clause 3 of the comment on the competence of the General Assembly of Owners of Premises in an apartment building, making decisions on transfer to the use of common property in an apartment building.
The implementation of the empowerment for the use of property, including those in common ownership, is the implementation of one of the elements that make up the content of property rights. Since property is in general dolly ownershipThe decision on its transfer to use is related to the competence of the general meeting of the owners of the premises in an apartment building.
By affecting the subject of the laws of law, which can be transferred to the use of individual objects of common property in an apartment building, it should be noted that as part of its competence, the specified general meeting has the right to decide on the transfer to the use of this property to persons as from among the owners of this common property, so and from among any other faces. Subject composition can be taken into account when establishing the amount of compensation for the property provided for use. Accordingly, if any property from the general property is provided to use one of the participants in common property, then its share of its share in the general property in this house can be taken into account when setting the specified compensation size.
17. It is quite obvious that, although paragraph 3 of the commented article 44 of the Housing Code of the Russian Federation provides for the possibility of transferring to the use of "common property in an apartment building", this does not mean the possibility of transferring the entire composition of such common property, since this transmission will violate the legal regime The use of the main property facilities in an apartment building - residential and non-residential premises. At the same time, part 4 Art. The 36 LCD RF directly provides for the possibility of transmitting objects of common property to other persons in a multi-factor house.
Thus, the general meeting of the owners of the premises in an apartment building, implementing the competence provided for in paragraph 3 of the comment, solves issues related to the provision of specific objects of the common property of the owners of the premises in an apartment building.
At the same time, it should be borne in mind that not all parts of the common property due to their functional destination can be provided for use. Objects such as the entrance, elevator and ventilation mines, systems and instruments of technical accounting, staircase marches and platforms and other similar objects that are inextricably linked with life support systems of the entire apartment building and constantly providing functional purpose Residential and non-residential premises in this house cannot be provided for use. Other objects, such as attic rooms, basements, land plots, etc., can be provided for use if it does not lead to infringement of the rights and legitimate interests of the owners of the premises in an apartment building, a violation of the exploitation of such a house.
18. Practice shows that, despite the fact that even before the introduction of the LCD of the Russian Federation, many elements of the apartment building were attributed to the Civil Code (Article 290) to the objects of the common property of this house, such facilities were transferred to the administrations of cities to use third parties without participation owners of the specified objects.
The placement of outdoor advertising on the walls and roofs of apartment buildings was widely widespread. Under July 1, 2006, the Federal Law of July 18, 1995 N 108-FZ "On Advertising" provided that the placement of advertising, including buildings, structures, other facilities, and determining the size and procedure for making advertising charges They are carried out on the basis of an agreement with the owner either with a person who has real rights to these facilities, in the presence of the permission of the relevant local government. Federal Law of March 13, 2006 N 38-FZ "On Advertising" also provides that the installation and operation of the advertising structure is carried out by its owner under the contract with the owner of the land plot, buildings or other real estate, to which the advertising design is joined, or with the face , managed by the owner of such property.
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SZ RF. 1995. N 30. Art. 2864.
SZ RF. 2006. N 12. Art. 1232.
At the same time, local governments and government bodies of such subjects of the Federation, as the city of federal importance, Moscow and St. Petersburg, not only issued permits, but also concluded contracts for posting outdoor advertising without taking into account the provisions of both previously operating and more new from the names Federal Laws and Civil Code of the Russian Federation (Art. 247), i.e. Without the permission of copyright advertising places.
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Thus, in some cities, authorized authorities made decisions that bind advertisers and advertisements to enter into advertising contracts not with the owners of common property in apartment buildings, which are used to place advertising, and with urban authorized body either with them created for these purposes unitary enterprise. At the same time, they introduced such wrong concepts as "advertising space", "advertising spaces", belonging to them on the right of ownership. For example, by Decree of the Government of Moscow dated January 22, 2002 N 41-PP "On the prospects for the development and rules for the placement of outdoor advertising, information and registration of the city" it was envisaged that the placement of external advertising and information funds are carried out on the basis of the distribution permit outdoor advertising, contract with advertising committee, information and registration of Moscow, if the amount of payment under the contract exceeds 2 million rubles a year, or with the state unitary enterprise in Moscow "City advertising and information", if the amount of payment under the contract does not exceed 2 million rubles per year. At the same time, when the question arises about the need to coordinate the placement of outdoor advertising on the wall or roof of an apartment building with citizens living in this house and ownership of property rights, the Named Committee obliges to coordinate such accommodation with the Directorate of the Unified Customer, replacing the decision of the owners of the object common property in an apartment building for the use of this organization as a balance holder. Thus, this committee was illegally considered the so-called balance holder (serving organization) as the sole owner of an apartment building.
The Housing Code of the Russian Federation directly provides that the decision to transfer to the use of common property in an apartment building can be accepted only by the owners of the premises in an apartment building at their general meeting. Solutions of other bodies and individuals cannot replace the decision of such a general meeting. At the same time, the provision by owners for the fee of individual structural elements of apartment buildings in order to use advertising, communication equipment, etc. can serve additional financial source The content of the common property of an apartment building.
At the same time, the continued numerous and ubiquitous violations of the rights of the owners of premises in apartment buildings on advertising were founded to make additional changes to legislation, including a commented article. Now, the competence of the general meeting of the owners of premises in an apartment building is directly related to the decision-making on the establishment of contracts for the installation and operation of advertising structures. At the same time, paragraph 3.1 hours 2 of the commented article on the competence of the named meeting include the question of determining the circle of persons who, on behalf of the owners of the premises in an apartment building, are authorized to conclude agreements on the use of the common property of the owners of the premises in an apartment building (including contracts for installation and operation Advertising structures) on the conditions defined by the decision of the General Assembly. A document confirming the consent of these owners to the installation and operation of the advertising structure is the protocol of the General Meeting of such owners.
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Changes specifying the competence of the General Meeting on the adoption of premises in apartment buildings on advertising decisions, entered into force on September 29, 2009
See: 2 h. 11 Art. 19 of the Federal Law of March 13, 2006 N 38-FZ "On Advertising" // SZ RF. 2006. N 12. Art. 1232.
19. Paragraph 4 of Part 2 of the commented article 44 of the Housing Code of the Russian Federation to the competence of the general meeting of the owners of premises in an apartment building related to the choice of a method for managing a multi-family house.
The general meeting of the owners of the premises in an apartment building with all its significance as the only control body of such a house and as a form of expression of the will of these owners is still not a flexible tool for managing the whole current activities According to the management of this house. In this regard, obliges the owners of the premises in an apartment building to choose the method of managing such a house at its general meeting. At the same time, the LCD of the Russian Federation provides for the possibility of choosing one of several methods of managing an apartment building: direct management, the management of housing owners by a housing cooperative or other specialized consumer cooperative, created in order to meet the needs of citizens in housing in accordance with federal law About such a cooperative, or managing the management organization (see commentary on the articles section. VIII LCD).
The choice of method of management does not mean the termination of the general meeting of the owners of the premises in an apartment building as an authority of the management of this house or the loss of them. Part 1 of the commented article for this case does not provide for any exceptions. In addition, according to the annual general meeting. In this case, the imperativeness of this norm is also not addressed on the selected management method.
20. It is necessary to note that part 2 of the commented article is supplemented with a new clause - § 4.1, and therefore "delimited" voting requirements in solving the general meeting of issues on major repairs and on the current repair of common property in an apartment building. If, to solve the issue of major repairs, you need to get most of at least 2/3 of the votes from the total number of votes of the premises in an apartment building, the question of the current repair of common property in an apartment building is made by a majority vote from the total number of votes of participating in this meeting of the owners of the premises in an apartment building.
21. In the event of a choice of a direct method of management, the general meeting of the owners of premises in an apartment building continues to fulfill its legislation as an organ of government a multi-family house.
When choosing a method for managing a multi-apartment house, the owner of the owners of housing or housing cooperative the general meeting of the owners of premises in an apartment building is entrusted to another subject of the right to carry out part of its emphasis. At the same time, it should be borne in mind that the specified management body of the apartment building transfers not its own authority (they remain from him), and the possibility of their implementation. Such a transmission is a way to implement the emphasis called an apartment building, and not the method of their alienation, in which the authority would lose these emphasis. In this case, it should be remembered that the direct carrier of the right to control the apartment building is the owner of the room in this house and its right to manage the apartment building follows from its right to place the placement in this house. Since each such owner is only the owner of a share in the right of ownership of the common property of the house (Art. 289 of the Civil Code,), then, as already mentioned, an objective need for collective decision-making on issues affecting common interests occurs. Such a collective body and acts as a general meeting of these owners, so it is the owner team that has all the full rights management rights (common property of an apartment building). Other persons, such as homeowners, housing cooperative, have the opportunity to implement individual law on the management of an apartment building from the owners of the premises in this house on the basis of the decision of the General Assembly of Owners. This principle is based on the concept of managing the apartment building.
Owners of premises in an apartment building, choosing a way to manage their home with the empowerment of the right to a certain part of its emphasis on the management of them, in essence, make it commitment to refrain from active actions that prevent the execution of the specified state.
22. Paragraph 5 of Part 2 of the commented article provides for the possibility of attributing to the competence of the general meeting of the owners of the premises in an apartment building and other issues, directly related to the LCD of the Russian Federation to the competence of the title management body of an apartment building. In particular, the LCD refers to such issues:
- the establishment of deadlines, the order of the annual general meeting of the owners of the premises in an apartment building and the procedure for notifying these owners about the decisions taken by him, determining the method of delivering a message to carry out a general meeting (see Commentary of Art. 45 LCD);
- making decisions on the creation of a home owner partnership (see
Management of apartment house owners of residential premises Ensures coordination of the will of each of them. When the number of subjects is small, less likely the occurrence of irresistible conflicts. Wherein decisions on the use of common propertynot accompanied by any significant difficulties. Another situation is in cases of multiplicity of owners. Features of coordination of the will of such subjects regulates art. 44 LCD RF. IN new edition The norms provide for the basic rules for discussing topical issues relating to the fate of material values, the use of which is carried out together. Consider them.
General meeting of owners of premises in an apartment building
It acts as a kind of administrative authority. General meeting of owners of premises in an apartment building It is organized to discuss issues related to the joint use of material values \u200b\u200bthat are parts of the structure. For this, the agenda is formed, the date of the event is assigned. According to Part 1 of Art. 44 LCD RF, coordination of the will of the owners is carried out by voting on issues formulated.
Organ competence
It is said in Part 2 of Art. 44 LCD RF. The competence of the administrative body is quite extensive. Household owners coordinate:
Art. 44 LCD RF with comments
The privatization of the housing confusion in Russia has created a rather difficult situation. In most apartment buildings there is no one owner. Such structures consist of a variety of areas belonging to citizens, legalins, MO, etc. This significantly complicates property management. Taking into account this circumstance, the code under consideration consolidates the special form of discussion of issues relating to the MCD. The general meeting is considered the only administrative authority. It exists during the entire period of the existence of the MKD.
Former order
Previously, the conditions for the management of property in apartment buildings were formulated by the territorial authorities. The legitimate owners of the square at the same time were removed from the discussion of topical issues. This, in turn, led to the widespread ignoring of the rights of these persons to participate in making decisions concerning the content, orders, the use of material values \u200b\u200boperated by citizens together. In most cases, the discussion was carried out at the level of housing and communal services. This led to the municipality of the Department of McD. Accordingly, there were no other organizational and economic prerequisites for the development of other forms of administration. The principle laid down in Art. 44 LCD RF, is designed to radically change the situation.
The nature of the competence of the administrative body of the Ministry of Measures
It is associated with the realization of the owner of the owners of housing. Elements of the competence of the administrative authority can be described as property and legal and organizational. The latter include the definition of key property management directions used in conjunction. Their number includes:
- Choosing a method of administration and an authorized organization.
- Coordination of issues on the liquidation and creation of HOA.
- Determination of the procedure and timing of the annual discussions of topical issues related to MKD and PR.
Property-legal elements of competence include decision-making on the rules of use, and within the established limits and orders of common property, determining the work fees and administration services, maintenance and so on. 
Exception of authority
It manifests itself in the fact that on certain issues, no other body, except for the General Meeting, can not have a discussion. For other structures, for example, the Board of HOA can be attributed. The ability to discuss some issues of Art. 44 LCD RF provides for other bodies. Thus, members of the partnership can agree on renting or transferring other rights to material valuesused by housing owners in the MKD. But, for example, issues such as the choice of administration option or the formation of HOA, can discuss only the general meeting. The unifying sign of the problems assigned to the exclusive competence of this body is their fundamentality. Decisions taken on issues are long-term.
Actual problem
The norm under consideration includes a list of issues to be discussed only by the administrative authority of the MCD, overhaul and re-equipment of individual areas in the construction. The exceptional competence of this structure includes problems concerning the construction of economic and other buildings. Present in art. 44 LCD The imperative norm eliminates the possibility of free interpretation and use by it by persons who are not considered by the owners of housing in the MCD.
Important moment
It should take into account the specifics of the discussion of issues relating to re-equipment in the construction. So, if it leads to a decrease in the volume of common property, then, taking into account the provisions of Articles 36 and 40 of the Code, the decision should be made unanimously by all owners at all or by all participants. In the latter case, approval must be obtained from the rest of the owners of the housing, which are not possible to attend the discussion. This rule applies and in cases where any of the owners without negotiation with neighbors carry out the restructuring of the premises used together. Other owners may require bringing re-equipped areas in initial View. The corresponding claim may be declared according to the rules 304 of the Civil Code. 
Spore
When considering cases related to the application art. 44 LCD RF, arbitrage practice Considers the norms of the GC. For example, if someone from the owners of the housing in the MKD is deprived of the opportunity to use some part of the construction (does not have access to the attic), he can declare a claim in accordance with the procedure 301 of the Civil Code. The claim may be placed in any other owner or to a third party. In the latter case, the imaging claim will be considered as declared in the interests of all owners of the MKD housing. His satisfaction does not predesend the issue relating to the use of common property. It only provides the claimant of lost possession.
Erectic and other buildings
According to experts, the competence of the administrative body of the MKD, enshrined in the paragraph of the first part of the second part of Art. 44 LCD, formulated ambiguously. The blurry of the interpretation manifests itself, first of all, in the norm, it is not specified as the site can be used to build buildings. In addition, Art. 44 LCD does not contain instructions on the appointment of structures. From this you can make a superficial conclusion that housing owners have the right to harmonize construction on any territory. At the same time, it may well do not refer to the site on which the MKD is located. At the same time, the positions of the part of the first art should be remembered. 44 LCD. It indicates that the competence of the administrative authority applies only to the objects used by the owners of the housing. The nature of the authority is related to property ownership. Accordingly, only those questions that relate to it are subject to discussion.
