Most garages were built as part of cooperatives - GSK. Therefore, box owners are members of such an organization and are required to comply with its terms and requirements. The garage owner has the right to leave the garage cooperative for any reason and at any time.
Whether to be a member of the GSK or not is a personal matter for the owner of the box. He can terminate his membership upon application, but at the same time he is not deprived of the right to own the garage; these rights are independent of each other. Reasons for leaving the cooperative may be:
- dissatisfaction with the established amount of the membership fee and distrust in the spending of the fund;
- the owner is ready to operate only the garage and refuses other services: electricity, snow removal, etc.;
- The box is planned to be sold due to various circumstances; the new owner will decide for himself whether he will join the GSK membership.
Not like everyone else
This is the position of some members of the cooperative - to leave it. What motivates these cooperative members? Of course, don't pay money. These people don't want to pay.
But this story happened in our cooperative. One friend bought a garage from our garage cooperative. And he immediately declared that he would not pay anything to the cooperative. No fees. I own the garage, but I don’t know you all. Although the cooperative is guarded by guards, in winter money is spent on clearing the territory of snow and year-round night lighting. Of course, you have to pay for all this.
But this comrade went even further. He built, or rather, added a second floor. And he did it very carefully. But, as it turned out, he did it in vain. Because the management of the cooperative was outraged by his behavior, they did not allow him to use the add-on. There was a trial. And the court's decision was to remove the second floor.
What was done. From the outside looking in, it was a pity for the person’s wasted effort, time and money. But on the other hand, you live in society - you need to be able to talk with people, and not behave so shamelessly. Now the garage owner will also have to pay for the demolition of the superstructure.
How to file an application to leave a garage cooperative?
Termination of membership is possible only with a written statement from the garage owner. You should first check with the chairman of the cooperative whether the form of the document is provided for in the Charter. If no special requirements are established, then the application is a simple document that must contain:
- the addressee to whom it is sent (the chairman of the State Committee);
- details of the applicant indicating his full name, passport details, registration information, as well as the garage box number;
- date of document preparation;
- Name;
- the text of the application, which sets out a request for exclusion from membership of the cooperative;
- information about the absence of debt on contributions and claims against the community;
- applicant's signature.
It is recommended that the application be drawn up in two copies, one of which must be endorsed with the date and signature of the person who accepted it into the GSK.
What does the law say?
Yes, what does the law say? In this case, nothing. If in HOAs or in gardening the law tells us how and what to do, then in garage cooperatives there is no law regulating its activities.
But what should we do?
We must not forget that garage cooperatives have a charter. Look for answers to your questions there. It is there that all the rights and obligations of the owners of the garage cooperative are described. And also owners who are not members of the cooperative, since there may be such owners.
Own your business in GSK garages and garage boxes. Part 1
According to paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, legal entities are divided into commercial and non-profit organizations. Non-profit organizations in accordance with paragraph 3 of this article can be created in the form of a consumer cooperative, which includes, among other things, housing and construction and garage cooperatives, horticultural, gardening and other cooperatives. That is, in the list of cooperatives you can see a garage and a housing construction cooperative, which means another combination is possible - a garage and construction cooperative, because this is not prohibited by law.
The concept of a consumer cooperative is disclosed in paragraph 1 of Art. 123.2 of the Civil Code of the Russian Federation, according to which a consumer cooperative is recognized as a voluntary association of citizens or citizens and legal entities based on membership in order to satisfy their material and other needs, carried out by combining property share contributions by its members.
A garage is a building and structure, premises for parking (storage), repair and maintenance of cars, motorcycles and other vehicles; can be either part of a residential building (built-in-attached garages) or a separate building (clause 3.3 “SP 113.13330.2016. Code of rules. Car parking. Updated version of SNiP 21-02-99*”, approved by Order of the Ministry of Construction of Russia dated 07.11.2016 N 776/pr).
Consequently, a garage-building cooperative (GSBC) is a non-profit organization that is a membership-based voluntary association of citizens or citizens and legal entities to meet their needs for the construction and maintenance of garages to accommodate vehicles.
GSK is a non-profit organization created to meet the material needs of the members of the cooperative, and, therefore, based on the norm of paragraph 1 of Art. 123.1 of the Civil Code of the Russian Federation, does not pursue profit as the main goal of its activities and does not distribute the profits received among participants. GSK is the owner of its property (clause 4 of article 123.1 of the Civil Code of the Russian Federation) and in accordance with the provisions of Chapter. 4 of the Civil Code of the Russian Federation, in particular § 1, can open current and other accounts in banks; have seals and stamps; carry out on its own behalf any transactions not prohibited by law in order to achieve its statutory goals; acquire property and non-property rights.
At the same time, the GSK is liable for its obligations with all its property, but is not responsible for the obligations of its members. Members of the GSK, in turn, jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid part of the additional contribution of each member of the cooperative (Clause 2 of Article 123.3 of the Civil Code of the Russian Federation).
What legal acts regulate the activities of GSK
There is no separate special regulatory legal act that regulates the activities of GSK. Therefore, the GSK is subject to the general provisions of the Civil Code of the Russian Federation on legal entities, especially non-profit corporate organizations, in particular the provisions of § 1, 6 (Articles 123.1 - 123.3) Ch. 4 Civil Code of the Russian Federation. In a number of cases, the norms of other laws on certain types of cooperatives can be applied by analogy, for example, the norms of the Federal Law of December 30, 2004 N 215-FZ “On Housing Accumulative Cooperatives”, etc., to the extent that does not contradict the goals of creation and the characteristics of the GSK (Appeal Determination of the Novosibirsk regional court dated 04/21/2016 in case No. 33-3910/2016, Appeal ruling of the Tambov Regional Court dated 03/19/2012 in case No. 33-671). However, there is an opposite position, according to which the norms of the said Law are not applicable to GSK (Appeal ruling of the Omsk Regional Court dated June 14, 2017 in case No. 33-4074/2017, Appeal ruling of the Samara Regional Court dated August 29, 2016 in case No. 33-10929/2016 ).
There are also cases in judicial practice of the extension of norms and other legal acts to legal relations with the participation of the State Insurance Committee, for example, the Law of the Russian Federation of June 19, 1992 N 3085-1 “On consumer cooperation (consumer societies, their unions) in the Russian Federation”, the Federal Law of April 15, 1998 N 66-FZ “On gardening, gardening and dacha non-profit associations of citizens”, Federal Law dated July 18, 2009 N 190-FZ “On Credit Cooperation”, as well as the provisions of the Housing Code of the Russian Federation (Resolution of the Tenth Arbitration Court of Appeal dated April 3, 2015 N 10AP- 16892/2014 in case No. A41-55922/14 (left unchanged by the Resolution of the Arbitration Court of the Moscow District dated July 31, 2015 No. F05-9429/2015)). But such cases are rare.
Formally, the USSR Law of May 26, 1988 N 8998-XI “On Cooperation in the USSR” (hereinafter referred to as the USSR Law on Cooperation), which can be applied limitedly only to the extent that does not contradict the norms of the Civil Code of the Russian Federation and other federal laws on cooperatives, has not lost force. Courts continue to refer to this Law when resolving disputes, incl. related to GSK (Appeal ruling of the Moscow City Court dated January 12, 2018 in case No. 33-561/2018). The norms of the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” do not apply to GSK (clause 3 of Article 1 of the said Law). Law of the Russian Federation of June 19, 1992 N 3085-1 “On consumer cooperation (consumer societies, their unions) in the Russian Federation” does not apply to garage and construction cooperatives (Article 2 of this Law).
Also taken into account in law enforcement are the provisions of the GSK charter, which are applied to the extent that does not contradict the law (Decision of the Supreme Court of the Russian Federation dated November 17, 2015 N 5-KG15-157, Appeal determination of the Supreme Court of the Republic of Sakha (Yakutia) dated July 19, 2017 in case No. 33 -2730/2017, Appeal ruling of the Moscow City Court dated September 20, 2017 in case No. 33-21236/2017).
The procedure for creating the GSK. GSK Charter
The GSK is created by a decision of the founders, which is adopted at a general meeting, conference or congress (clause 3 of article 123.1 of the Civil Code of the Russian Federation). The founders are citizens or citizens and legal entities at such a meeting:
1) decide on the creation of the GSK; 2) approve the charter of the GSK; 3) form (form) the organs of the GSC. The charter of the GSK must necessarily contain information about: 1) the name of the GSK; 2) location of the cooperative; 3) the subject and purposes of the activities of the GSK (the period for the creation of the GSK may also be indicated); 4) the composition, amount, conditions and procedure for making share contributions, liability for violation of obligations to make contributions; 5) the composition and competence of the GSK bodies, the procedure for their decision-making, including on issues on which decisions are made unanimously or by a qualified majority of votes; 6) the procedure for covering losses incurred by members of the cooperative.
The charter may contain other information in addition to the above, for example, information about the features and procedure for implementing the goals of the GSK, the composition and procedure for managing property, etc. According to paragraph. 2 p. 2 art. 123.2 of the Civil Code of the Russian Federation, the name of the cooperative must contain an indication of the main purpose of its activities, as well as the word “cooperative”, for example: “Garage and construction cooperative “Vasilek”.
The created cooperative is subject to state registration in the manner prescribed for the registration of legal entities (Chapter VI of the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, hereinafter referred to as the Law on State Registration). The list of documents submitted for state registration is specified in Art. 12 of the Law on State Registration, in particular, in the application for state registration, the State Joint Stock Company provides information about the founders, information about the address (location) of the permanent body of the State Joint Stock Company (for example, the chairman), etc., and the charter of the cooperative is also presented.
GSK governing bodies
The basic provisions on management in a cooperative are established by Art. 65.3 of the Civil Code of the Russian Federation, according to clause 1 of which the supreme governing body of the GSK is the general meeting of its members. The charter of the cooperative must define the competence of the supreme body, incl. issues falling within the exclusive competence of the body, as well as the procedure for convening this body and making decisions. In paragraph 2 of Art. 65.3 of the Civil Code of the Russian Federation contains a list of issues that can be attributed to the exclusive competence of the highest body of the Civil Code.
The list is open; the law or the charter of the cooperative may change, incl. be supplemented. For example, the legislator includes within the competence of the supreme body: a) approval and amendment of the charter of the State Joint Stock Company; b) determining the procedure for admitting and expelling members of the cooperative; c) the formation of other bodies of the GSK and the early termination of their powers, but in this case, the charter of the GSK may fall within the competence of another collegial body; d) approval of annual reports and accounting (financial) statements, if the charter of the corporation in accordance with the law does not include this authority within the competence of other collegial bodies; e) making decisions on the reorganization and liquidation of the State Joint Stock Company, on the appointment of a liquidation commission (liquidator) and on the approval of the liquidation balance sheet; f) other powers established by law or charter.
The decision of the supreme body of the GSK is made by a majority vote of the meeting participants, subject to the presence of a quorum - at least fifty percent of the total number of members of the cooperative (Clause 1 of Article 181.2 of the Civil Code of the Russian Federation).
In addition to the supreme body, executive bodies are created in the cooperative - a sole executive body, and a collegial executive body can also be formed. According to the general rule (clause 3 of Article 65.3 of the Civil Code of the Russian Federation), a sole executive body is formed (for example, the chairman of a cooperative). The charter of a cooperative may provide for the granting of powers of such a body to several persons acting jointly, or the formation of several sole executive bodies acting independently of each other (paragraph 3, paragraph 1, article 53 of the Civil Code of the Russian Federation). Both an individual and a legal entity can act as a sole executive body, but, as a rule, such a body at the GSK is a citizen.
The GSK charter or law may provide for the creation of a collegial executive body (board, directorate, bureau, etc.).
The competence and procedure for the formation of executive bodies are established by the GSK charter. The competence of the executive body includes issues that are not within the competence of the supreme body of the GSK and other bodies (collegial body). For example, the charter of the GSK may include the following powers within the competence of the executive bodies: a) convening a general meeting of members of the GSK and preparing for it; b) planning the activities of the GSK, drawing up estimates and staffing, forming the apparatus of executive bodies; c) management of the current activities of the GSK and implementation of decisions of the general meeting; d) management (disposal) of the financial resources of the cooperative in accordance with the plan approved by the general meeting, etc.
In addition, it is the executive body of the GSK that represents the cooperative in government bodies, courts, etc. On a par with the executive bodies of paragraph 4 of Art. 65.3 of the Civil Code of the Russian Federation provides for the possibility of creating a special collegial body (supervisory or other board) that monitors the activities of executive bodies and performs other functions assigned to it by law or charter. For example, such a body may decide on the participation of GSK in the creation of other legal entities and the opening of branches.
Persons exercising the powers of the sole executive bodies of corporations and members of their collegial executive bodies cannot constitute more than one quarter of the composition of the collegial management bodies of the State Corporation and cannot be their chairmen.
Thus, the charter of the GSK must necessarily provide for the formation of: a) the highest management body of the GSK - the general meeting - consisting of members of the cooperative; b) the sole executive body of GSK. Optional (not obligatory to form) bodies can be: a) collegial executive body of the GSK (board, directorate, etc.); b) collegial body of the GSK (supervisory and other council).
The procedure for admission and resignation from the GSK
Requirements for members of the GSK, as well as the procedure for admitting and leaving the GSK must be defined in the charter of the cooperative. As a rule, citizens who have reached the age of 16 can become members of a cooperative. Such requirements for the age of citizens - members of the cooperative, in particular, are contained in Art. 12 of the USSR Law on Cooperation. Members of the GSK can be both citizens and legal entities.
The charter of the GSK defines the body of the cooperative that is authorized to make a decision on admission to membership of the cooperative: the general meeting of members of the cooperative, or the sole/collegial executive body of the cooperative, the collegial body of the GSK. In order to more quickly and flexibly make a decision on admission to membership of a cooperative, it is better to delegate the authority to admit members to a body that operates permanently (for example, a collegial executive body).
Admission to membership in the GSK is, as a rule, carried out on the basis of a written application from a candidate member of the cooperative, while the member accepted into the cooperative pays a share contribution in the manner and within the time limits established by the charter.
It is permissible to withdraw from the membership of the cooperative upon an application submitted within the time frame and in the manner established by the charter of the GSK. In this case, the withdrawn member is paid the value of the share in cash or in kind by the provision of property. In particular, in this case the norms of Art. 106.5 of the Civil Code of the Russian Federation on termination of membership in a production cooperative (Appeal ruling of the Samara Regional Court dated May 15, 2013 in case No. 33-4241/2013).
Expulsion from the cooperative is possible by decision of the general meeting (conference, etc.) of the members of the cooperative on the grounds established by the charter, for example, for: a) failure to comply with the requirements of the charter and bodies of the State Joint Stock Company; b) causing damage to GSK property, violating the rules for maintaining and operating a garage, etc.
Also, the charter of the GSK may provide for a rule on expulsion from members of the GSK in case of non-payment of the share contribution upon joining the cooperative (Clause 4, Article 12 of the USSR Law on Cooperation).
The decision to expel from members of the State Committee can be appealed in court (Clause 4 of Article 12 of the USSR Law on Cooperation, Articles 181.3 - 181.4 of the Civil Code of the Russian Federation, Appeal ruling of the Moscow City Court dated 02/14/2017 in case No. 33-3966/ 2017, Appeal ruling of the Moscow City Court dated 02/10/2017 in case No. 33-5241/2017, Appeal ruling of the Supreme Court of the Republic of Crimea dated 01/31/2017 in case No. 33-258/2017).
Rights and obligations of GSK members
The rights and obligations of the members of the GSK are determined by the charter of the cooperative, since no separate requirements are established in the law, with the exception of Art. 123.3 of the Civil Code of the Russian Federation, which defines the responsibilities of members of consumer cooperatives.
According to paragraph 1 of this article, within three months after the approval of the annual balance sheet, members of the consumer cooperative are obliged to cover the resulting losses by making additional contributions. If this obligation is not fulfilled, the cooperative may be liquidated in court at the request of creditors.
As a guideline when establishing the rights and obligations of members of the State Joint Stock Company, you can take the norms of other laws on certain types of cooperatives, as well as Art. 13 of the USSR Law on Cooperation. For example, a member of a cooperative has the right to: 1) participate in the activities of the GSK and the management of its affairs, elect and be elected to the bodies of the GSK, take part in the general meeting of members of the GSK with voting rights, make proposals for improving the activities of the GSK; 2) use the property of the cooperative, as well as receive a garage or parking space in accordance with the contributed share, alienate your share (garage); 3) gain access to information about the activities of the GSK, get acquainted with the reports of the GSK bodies, financial documentation, etc.
Among the responsibilities of members of the cooperative, the following can be identified: 1) comply with the charter and decisions of the GSK bodies; 2) pay the established contributions in a timely manner and in full; 3) maintain your garage in accordance with the requirements of the law, incl. sanitary, fire safety, technical and other standards; 4) participate in the costs of maintaining the common property of the GSK, other duties in accordance with the charter.
Reorganization and liquidation of GSK
The reorganization and liquidation of the GSK can be carried out by decision of the general meeting (conference, congress, etc.) of the members of the cooperative (clause 1, article 57, clause 2, article 61 of the Civil Code of the Russian Federation). The charter of the cooperative may provide for granting the right to make a similar decision to other bodies of the State Joint Stock Company. The decision is usually made by a qualified majority of votes, unless otherwise provided by the charter.
The reorganization is carried out in compliance with the general requirements of Art. Art. 57 - 60.2 of the Civil Code of the Russian Federation. As a rule, a reorganization commission is created, which carries out measures to carry out the reorganization. According to paragraph 3 of Art. 123.2, by decision of its members, a cooperative may be transformed into a public organization, association (union), autonomous non-profit organization or foundation. Liquidation of GSK can be carried out: a) on a voluntary basis. The decision on liquidation is made by the general meeting of the GSK or other body authorized by the charter and is made taking into account the provisions of Art. Art. 61 - 64.1 Civil Code of the Russian Federation. In this case, a liquidation commission is created, which carries out all actions related to the liquidation of GSK; b) by court decision. A demand for liquidation of a cooperative may be made by: - creditors, incl. in the case specified in paragraph 1 of Art. 123.3 of the Civil Code of the Russian Federation in case of failure by members of the GSK to cover the losses of the cooperative with additional contributions; - members of the GSK in the event that it is impossible to achieve the goals for which the GSK was created, including in the event that the implementation of activities becomes impossible or is significantly hampered; - by an authorized body in the event of systematic implementation of activities that contradict the statutory goals of the creation of the State Joint Stock Company, systematic or gross violation of the law, or implementation of activities prohibited by law. Liquidation by court decision is carried out taking into account the provisions of paragraphs 4 - 5 of Art. 61 Civil Code of the Russian Federation.
Thus, GSK is a legal entity in the form of a non-profit corporate organization, based on membership, a voluntary association of citizens or citizens and legal entities in order to meet their needs for the construction and maintenance of garages to accommodate vehicles. The decision to create the GSK is made by its founders - members of the GSK. The management of the State Joint Stock Company, its acquisition of civil rights and the performance (fulfillment) of duties is carried out through the bodies of the State Joint Stock Company, the system and competence of which is determined by the charter of the cooperative, and the sole executive body of the State Joint Stock Company and the supreme body - the general meeting of members of the State Joint Stock Company are necessarily formed. The charter of the cooperative also determines the procedure for admitting and expelling members of the GSK, as well as the rights and obligations of members of the cooperative.
Prepared based on material by S.A. Slesarev, private practicing lawyer, expert, Mtsensk
What would a lawyer say?
If you are not a member of a garage-building cooperative, you are not required to pay any membership fees. The owner can pay the garage and land tax directly to the tax authority, and not to the chairman of the cooperative.
Of course, if a cooperative provides any services, they need to be paid for; in this case, the GSK has the right to demand from the owner of the garage (even if he is not a member of the GSK) to pay mandatory payments (including the salary of the service personnel, lighting, security, cleaning and garbage removal, and etc.).
The amounts of payments are established by a decision of the GSK management body (general meeting). Payments will be collected in court (this is done easily). From a legal point of view, this is the burden of maintaining the property, as well as participating in general expenses. The absence of an agreement between the garage owner and GSK will also not cause any special obstacles.
Outside of court, you may be warned about the debt (in writing), then the electricity will be turned off. The cooperative, in turn, must issue documents confirming your payment. Of course, the use of electricity is possible either under an agreement with the cooperative, or directly with the electricity supply company.
Exiting the GSK if you own a garage - step-by-step instructions
The procedure for voluntary withdrawal from the GSK is quite simple. To do this, you must follow the following procedure:
- Submit an application filled out addressed to the chairman of the cooperative, with a request to exclude you from members of the community.
- Take part in the general meeting of cooperative members. The agenda must include the issue of termination of membership and minutes of the meeting must be kept. You must have a copy of it at your disposal.
- Together with the treasurer or accountant of GSK, reconcile the calculations and enter the accrued amounts of contributions. Hand in your membership book.
Upon completion of these actions, a corresponding note is made in the cooperative’s documents, and the supply of services provided for by the GSK Charter to the garage is stopped. If the owner requires electricity or other services, he has the right to enter into direct contracts with suppliers.
Summary
Yes, there are people who want to be smarter than others. Like, I didn’t join your cooperative. I won't pay any fees. But I will use the road to the cooperative, which the members of the cooperative maintain, especially in winter, night lighting, and security services that the cooperative has.
It is clear that you will still have to pay for electricity in your personal garage. And I will pay the tax to the tax office myself. And the chairman has to fight such people. Waste time in the courts, since he does not have the right to prohibit the owner from using his property, such as welding the gate, putting a concrete block at the gate.
How would you react to such cunning people? But, however, no matter how cunning he is, he will still have to pay for the burden of maintaining the property, as mentioned above. You will also have to pay court costs, since it is unlikely that the court decision will be in favor of the defaulter.
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