Step-by-step instructions on how to hold a general meeting of owners of an apartment building

At a general meeting of property owners in an apartment building (AMD), decisions are made exclusively by voting. Such voting can take place not only in the personal presence of the owners, but also in absentia, when citizens give their response to the agenda in writing on a specially designed form.

Regardless of the issue on which the meeting of owners was scheduled and in what form it takes place, it is very important to know the procedure by which votes should be counted in the HOA. At an in-person meeting, it is also necessary to draw up a protocol, which can be any standard one, as well as attendance sheets, which must be signed by the participants present. In addition, if we talk specifically about the in-person meeting, referring to Article 45 of the Current Housing Code of the Russian Federation, it cannot be held if the owners present at it have less than fifty percent of the votes. At the same time, you need to know that the number of such is calculated not by the number of residents and apartments, but by area.

Accordingly, this means that you should carefully prepare for a meeting of homeowners, especially when a clearly important issue is being resolved. Everyone present must know the exact total area in the apartment building, have their own personal passport and papers confirming their right to own the premises (copies are possible).

Determining the quorum of homeowners in apartment buildings

Quorum is the minimum number of participants at which the meeting and the decisions made at it will be considered legitimate.
How is it calculated? According to the Housing Code, the quorum must be at least half of the possible participants.

In discussing individual problems, sometimes the presence of 2/3 or even 100% of the owners is required.

For this reason, holding two meetings in parallel is not possible. After all, here and there you will need more than 50% of the owners.

It is necessary to calculate in advance the required number of participants, based on the essence of the issues being discussed and the number of owners on the voting date

If you wish, you can change the size of the quorum by general decision, for example, increasing it from 50% of the owners to 2/3 or more.

It is important to remember that quorum should not be determined simply by the number of people present, because each of them owns a different number of square meters. Therefore, before the meeting, it is important to count the number of votes owned by residents and their ratio to the total number.

In many cases, a formula is used in which 1 sq. m is equal to 1 vote . Therefore, owners of large apartments automatically have more weight in the calculations.

Who and when can convene a general meeting of owners?

The annual general meeting of owners of premises in an apartment building is held in the second quarter, unless the meeting of owners has previously established a different procedure. An extraordinary general meeting of owners can be held at any time. The initiator can be:

• any owner of premises in the house;
• State Public Institution “District Engineering Services” (if there is city property in the house);
• management organization (or HOA, residential complex, housing cooperative);
• local government body or special account owner (only in special cases provided for by the Housing Code of the Russian Federation).

How to prepare for the general meeting of owners?

When preparing for a general meeting of premises owners, you need to:

1. Determine the agenda for the general meeting.
2. Compose a message to notify owners.
3. Prepare a register of owners of premises in an apartment building, as well as forms and information materials (form for notification of a meeting, form for the decision of the owner of the premises, form for minutes, etc.).
4. Determine how you will notify the owners of the meeting.

Step 1. Announcement

Any OSS begins with the announcement of the event and the convening of homeowners for it. an annual general meeting must be held in the second quarter of each year (part 1 of article 45 of the Housing Code of the Russian Federation). In addition, at the initiative of the management company, homeowners or an initiative group, extraordinary OSS can gather in the apartment building (parts 2, 6 and 7 of Article 45, as well as clause 8 of Article 148 of the Housing Code of the Russian Federation).

Step 2. Preparation

Formulate the agenda of the OSS, decide on the form of voting (in-person, absentee or in-person). When voting in person or in absentia, the agenda must be the same for both forms.

To conduct in-person or absentee voting, select the time and place for the OSS to discuss issues. Prepare an information message about holding a general meeting of homeowners (Order of the Ministry of Construction No. 411/pr dated July 31, 2014). You will also need OSS protocol , a register of owners of premises in this apartment building, and decision forms on agenda items.

Step 3. Notification

You must notify each owner of the premises in this apartment building by means of a written notice against signature, sending a registered letter to his address or posting on an information board in a place accessible to all residents 10 days before the date of the general meeting (Part 4 of Article 45 of the Housing Code of the Russian Federation ).

The notice of the general meeting must contain complete and reliable information about the initiator of the general meeting, the form of voting, the date, place and time of the event. The notification must also necessarily contain the agenda items and the procedure for familiarizing participants with the information and materials that will be presented at the event. When holding a general meeting in the form of in-person or absentee voting , the message will also need to indicate the deadline for accepting decisions of homeowners, the place or address where these decisions should be sent (Part 5 of Article 45 of the Housing Code of the Russian Federation).

When conducting an OSS in the form of in-person and absentee voting using the GIS Housing and Communal Services , the notification must additionally indicate information about the administrator of the OSS (name for legal entities and full name for individuals). In addition, the place and actual address, the date and time of the start and end of voting, the procedure and procedure for the reception by the administrator of the OSS of written decisions of homeowners on the agenda items are indicated (Part 4 of Article 47.1 of the Housing Code of the Russian Federation).

The in-person form of voting by homeowners involves both in-person and absentee voting, therefore, in the message about the general meeting, it is necessary to indicate 2 dates: the start of in-person voting and the time before which decisions are made by owners voting in absentia. Both dates are set 10 days before homeowners receive notice.

The sequence of the in-person and absentee parts of in-person voting is not defined, so both forms can be carried out either sequentially or in parallel, or even one form can be “inside” the other. The latter option is possible if the start date for accepting absentee decisions is set earlier than the time of the in-person meeting, and the end date for accepting absentee decisions is, accordingly, later than the date of the in-person meeting.

Step 4. Carrying out

When holding a general meeting in the form of in-person and absentee voting , participants must be given the opportunity to discuss issues on the agenda and submit voting forms within the prescribed period to the place or address specified in the notice (Part 3 of Article 47 of the RF Housing Code).

Voting using the GIS Housing and Communal Services is carried out by the owners of premises in the apartment building in person, indicating the decision on each item on the agenda in electronic form. It is also possible to transfer the decision to the OSS administrator in writing before the end date and time of voting (Part 6, Article 47.1 of the Housing Code of the Russian Federation).

Decisions of the OSS on agenda items are made by a majority vote of the total number of homeowners participating in the meeting (Part 1 of Article 46 of the Housing Code of the Russian Federation). The exception is decisions that are made by a majority of at least 2/3 of the votes of the total number of owners of premises in an apartment building (clauses 1 - 3.1, part 2, article 44, part 1, article 46 of the Housing Code of the Russian Federation).

Step 5. Registration of voting results

The decision of the OCC is formalized in a protocol (Part 1, Article 46 of the RF Housing Code). In the case of an in-person and absentee meeting, the in-person and absentee votes are summed up, so the OSS protocol is drawn up alone. Decisions and minutes of the OSS are official documents certifying facts that entail legal consequences for the owners of premises in an apartment building in the form of responsibilities for the maintenance of common property in a given building. All decisions and minutes of the general meeting must be posted in the GIS Housing and Communal Services by the initiator of the meeting.

The minutes of the general meeting must contain the date, place and time of the general meeting and summing up the results, the agenda, the presence of a quorum, the number of votes “For”, “Against” and “Abstained” on each issue. There is no approved form of the protocol yet, but there is a draft Order of the Ministry of Construction on the preparation of OSS protocols.

The minutes of the OSS are signed by the chairman and secretary of the general meeting, as well as members of the counting commission (clause 22 section 6, clause 15 section 7 of the Methodological Recommendations approved by Order of the Ministry of Construction of the Russian Federation No. 411/pr dated July 31, 2014).

Regardless of the form of voting, the decision of homeowners on issues on the voting agenda must indicate (Part 5.1, Article 48 of the Housing Code of the Russian Federation):

• information about the voting participant;
• information about the document confirming the ownership of the apartment/room in the apartment building of the voting participant;
• decisions on each item on the agenda: “for”, “against” and “abstained”.

The initiator of the general meeting must provide the originals of the decisions and minutes of the general meeting to his management company within 10 days after the event (Part 1 of Article 46 of the Housing Code of the Russian Federation).

Decisions of the general meeting of owners of premises in an apartment building, adopted based on voting results using the GIS Housing and Communal Services, are automatically formed into the OSS protocol and posted in the system within one hour after the end of voting (Part 11 of Article 47.1 of the Housing Code of the Russian Federation).

The management company , within 5 days from the date of receipt of the decisions and the OSS protocol, must, in the manner prescribed by law, send them to the State Housing Property Inspectorate for storage for 3 years, including using the GIS Housing and Communal Services (Part 1.1 of Article 46 of the Housing Code of the Russian Federation). That is, whether you hold an in-person meeting of homeowners the old fashioned way or using the system, in any case, the originals of the decisions and protocols of the OSS will be sent to the State Housing Property Inspectorate. Only in the first case these will be paper documents, and in the second, electronic versions.

Step 6. Informing about voting results and decisions made

The voting results and decisions made at the OSS are brought to the attention of all homeowners by the initiator of the meeting within 10 days from the date of their adoption. The information is posted in a building accessible to all residents (Part 3 of Article 46 of the RF Housing Code). For example, on an information board or on the front door at the entrance.

Step 7. Posting voting results

Decisions of the owners of premises in apartment buildings, adopted during absentee voting at a general meeting, must be published no later than 10 days from the date of the general meeting in four sources of information disclosure approved by law:

• on the website Reform LCD
• on the website of the management company
• on the GIS Housing and Communal Services website
• on information stands in the management company office.

​How to correctly count votes at a general meeting of owners, what to take as 100%.

September 26, 2019

When counting votes, as well as when challenging decisions of a general meeting, one of the most important roles is played by the presence or absence of a quorum.

A decision made without a quorum is considered invalid due to nullity, that is, regardless of the existence of a court decision on this issue: the State Housing Property Committee may refuse to make changes to the register of licenses, and the Criminal Code, having received a protocol from the initiator with a dubious quorum, may refer to the lack of quorum, then do not implement the decisions made. Therefore, when holding a meeting, it is necessary to pay special attention to ensuring a quorum: ensure that ballots are filled out correctly, votes are correctly counted and the total number of votes owned by the owners is correctly determined.

To invalidate the decision, the easiest way for the opposition to direct its efforts is to “collapse” the quorum. This can be done by deducting incorrectly completed ballots, or by challenging the total area (total number of votes), which is indicated as 100% in the house and from which the count was carried out.

Judicial practice on the procedure for counting votes is not completely stable, but in general a generalization can be made from it.

Our staff will help you: - prepare a full package of documents for the general meeting of owners with a guarantee of acceptance of documents by the Housing Inspectorate. — update the register of owners based on the FSIS EGRN of Rosreestr. — make personalized forms for each resident. Our experience is more than 5 years and several thousand successful meetings, even in the most conflict-ridden homes. Call us 8-800-100-24-97 (toll-free) or write

The Housing Code only states that the number of votes of each owner is proportional to his share in the right of common ownership of common property (Part 3, Article 48), and such share is proportional to the area of ​​the premises owned (Part 1, Article 37). That is, the number of votes directly depends on the size of the room.

Therefore, it is completely incorrect to count votes by the hands, heads and other parts of the owner’s body. This calculation was adopted at a meeting of members of the cooperative, which is not related to this article.

In practice, there are two common methods of counting votes. These options are well described in the methodological materials posted on the website of the Moscow regional overhaul operator. Let's briefly recap these methods.

Based on the total area of ​​the apartment (non-residential premises) of the owner (taking into account his share, if the property is shared): 1 sq. m of total floor area gives 1 vote.

For example, if the size of the apartment is 30.6 square meters. m and it has one owner, then he has 30.6 votes. If there are 2 owners of such an apartment, and each share is ½, then each owner will have 15.3 votes.

The advantages of the method: stability of counting in the event of a change in the total area of ​​residential and non-residential premises, any resident is able to count how many votes he has.

Examples from practice. The ruling of the Kurgan Regional Court dated April 16, 2019 in case No. 33-1035/2019: “the judicial panel also rejects the argument of the claim about the incorrect procedure for counting votes, since the chosen method is based on 1 square. m of area belonging to the owner of the residential premises, equal to 1 vote, complies with the provisions of Part 3 of Art. 48 Housing Code of the Russian Federation."

The same approach is found in the appeal rulings of the Moscow City Court of September 26, 2021 in case No. 33-26233/2018, of May 22, 2021 in case No. 33-20123 and other decisions, but the courts do not give a detailed assessment of this method of calculation , but they just use it.

Based on the owner’s share in the right of common ownership of common property.

The size of the resident’s premises is taken, taking into account the share (if the premises have several owners), divided by the total area of ​​residential and non-residential premises of all owners in the apartment building (excluding common property), and multiplied by the proportionality coefficient (100, 1000, etc.)

The coefficient determines the total number of votes of owners. If the value of the coefficient is taken equal to 100, this means that the total number of votes of all potential participants in the meeting is equal to 100. With a coefficient = 1000, the total number of votes is equal to 1000. It is recommended to take the value of the proportionality coefficient based on the number of premises: the more of them, the greater the coefficient so that owners had at least 1 vote.

Some do without this coefficient: the number of votes of a resident is taken as the size of his premises, taking into account the share and divided by the total area of ​​​​all residential and non-residential premises. Then everyone’s votes are obtained in the form of hundredths and thousandths, and their sum gives 1.

Disadvantages of this method: complexity of calculation - a resident cannot count his votes; they have to be determined by the initiator of the meeting. When the total area of ​​residential and non-residential premises changes (extension, reconstruction, clarification of information), the number of votes of each owner changes. Taking into account the fact that they must be indicated on ballots, then recalculating the number and making corrections can be problematic.

Example from practice. Determination of the Moscow City Court dated August 14, 2021 in case No. 33-31916: “the sum of the shares of all owners of premises is 100% of the share and votes, and the share of a particular owner is the result of dividing the total area of ​​his premises by the sum of the total areas of all premises in the house, which do not belong to common property."

The counting of votes at a meeting of HOA members is similar, however, only the total area of ​​​​those premises that are owned by HOA members, and not all owners, is taken as 100%.

Example from practice. Determination of the Sverdlovsk Regional Court dated April 17, 2019 in case No. 33-5527/2019: “the competence of the general meeting of HOA members is determined in two stages: first, the total size of the premises and the number of votes belonging to the owners are established, and after that the total number of HOA members and the size are established premises belonging to them, which should be taken as 100% and from which the presence or absence of a quorum at the general meeting of HOA members should be determined.”

About the total area of ​​the premises.

Some courts take into account not the total area of ​​apartments and non-residential premises, but the area of ​​the entire house. Is it necessary to explain what consequences this approach leads to? I am glad that this practice is not widespread and reasonableness in this matter still prevails.

Examples from practice.

Determination of the Samara Regional Court dated January 17, 2019 No. 33-605/2019: “in resolving the dispute, the court proceeded from the fact that, according to the information contained in the Unified State Register, the area of ​​the house is 23,699.20 square meters. m and it is this area that was accepted by the court when calculating the quorum. However, at the meeting, the number of votes of the owner depends on the size of his premises. When determining the votes that the owner has, the calculation must be made based on the area of ​​residential and non-residential premises, and not on the area of ​​the building as a whole.”

Determination of the Kurgan Regional Court dated May 16, 2021 in case No. 33-1342/2019: “When calculating the quorum, the court took into account the total area of ​​the house, established according to the information of the State Budgetary Institution “State Center for Cadastral Valuation and Real Estate Registration.” The panel of judges considers this calculation to be erroneous. Calculating the quorum based on the total area of ​​the house violates the principle of proportion, since the total number of votes of all owners, calculated without determining their share in the common property, will obviously be less than 100%. The protocol determines that 1 vote corresponds to 1 m2 of his premises (without taking into account his share in the right of common ownership of common property). In this case, the total number will be equal to the number of meters of premises they occupy.”

Determination of the Kurgan Regional Court dated March 26, 2019 in case No. 33-814/2019: “The calculation at the general meeting was carried out based on the size of the premises belonging to the owners, without taking into account the area of ​​common premises that fell to their share, and therefore the calculation was lawfully taken the total living area of ​​the house."

Ruling of the Moscow City Court dated March 22, 2019 in case No. 33-12522/2019: when calculating the quorum, the court also used the size of premises owned by citizens, without taking into account balconies and loggias. The same approach was used in the ruling of the same court dated October 2, 2021 in case No. 33-37649.

Determination of the Moscow City Court dated May 16, 2019 No. 33-9168/2019: this decision is interesting because 100% was taken to be the total area of ​​the premises for which ownership was registered. “State registration of a right in the Unified State Register of Real Estate is the only evidence of the existence of a registered right. Thus, the court agreed with the defendant’s arguments that the disputed premises during the meeting were not individualized property and could not be taken into account when determining shares in the right of common shared ownership of common property. Thus, the persons carrying out the count rightfully proceeded from the size of the premises belonging to the residents and the total area of ​​all residential and non-residential premises of the house registered as property, taking into account the data from the register of owners for the period of the meeting.”

Some courts give priority to information from the technical passport rather than Rosreestr, which must be taken into account if there is a prospect of challenging the decision.

Examples from the practice of counting votes at a general meeting.

Determination of the Omsk Regional Court dated August 22, 2019 in case No. 33-5107/2019: “The panel of judges notes that when comparing the USRN data on the areas of residential premises with the data of the technical passport of the house, data from title documents, it is obvious that the USRN information does not correctly reflect the data on area of ​​premises. In this connection, when calculating the quorum, the board considered it possible to be guided by the information from the technical documentation.”

Ruling of the Sverdlovsk Regional Court dated March 6, 2021 in case No. 33-3393/2019: the defendants believed that the number of votes should be calculated based on the total area of ​​the premises determined according to the Unified State Register of Real Estate, and not according to the technical passport, but the courts used it for counting the total usable area of ​​residential and non-residential premises, indicated specifically in the technical documentation. It turned out to be larger than the area in the Unified State Register of Real Estate, which led to the conclusion that there was no quorum.

If you are holding a meeting, then try (at least mentally) to focus on the largest area possible; it will most likely be different in different sources - GIS Housing and Communal Services, Reforma Housing and Communal Services, Unified State Register of Real Estate and registration certificate.

Our staff will help you: - prepare a full package of documents for the general meeting of owners with a guarantee of acceptance of documents by the Housing Inspectorate. — update the register of owners based on the FSIS EGRN of Rosreestr. — make personalized forms for each resident. Our experience is more than 5 years and several thousand successful meetings, even in the most conflict-ridden homes. Call us 8-800-100-24-97 (toll-free) or write

What issues can be put to a vote by the owners of an apartment building?

The General Meeting of Owners may make decisions on:

• reconstruction of a house, major repairs of common property in an apartment building, the use of funds from the capital repair fund, reconstruction and (or) redevelopment of premises included in the common property in an apartment building;
• choosing a method for forming a capital repair fund, increasing the amount of contributions for capital repairs, choosing a person authorized to open a special account at home and carry out transactions with funds in the special account;
• receipt by a homeowners' association (housing cooperative, housing complex, management organization) of a loan or loan for major repairs;
• the limits of use of the land plot on which the apartment building is located, improvement of this plot, installation of a barrier in the courtyard of the house;
• concluding agreements for the installation and operation of advertising structures, if this involves using the common property of the owners in an apartment building;
• choosing a way to manage the house;
• exit from the renovation program;
• current repairs of common property in an apartment building;
• conclusion by owners, acting on their own behalf, of agreements with resource supply organizations and the regional operator for the management of municipal solid waste;
• consent to transfer residential premises to non-residential premises;
• other issues.

As a general rule, decisions of the general meeting of owners on issues put to vote are adopted by a majority vote of the total number of votes of the owners participating in this meeting (Part 1, Clause 2, Part 1.2, Article 46 of the Housing Code of the Russian Federation).

The exceptions are (clauses 1, 1.1-1, 1.2, 2, 3, 3.1, 4.2, 4.3, part 2, article 44, part 1, clause 1, part 1.2, article 46, part 1, art. 136 Housing Code of the Russian Federation):

• decisions taken by more than 50% of the total number of votes of owners of premises in MKD on the choice of the method of forming a capital repair fund, the choice of a person authorized to open a special account and carry out transactions with the funds located on it, on vesting the MKD council with decision-making powers on the current repair of common property in an apartment building and the decision to create a HOA in one apartment building;
• individual decisions made by a majority of at least two-thirds of the total number of votes of the owners of premises in an apartment building, for example, decisions on the reconstruction of an apartment building, on the construction of outbuildings and other buildings, on the reconstruction and (or) redevelopment of premises included in the common property MKD, on the limits of use of the land plot on which the apartment building is located, on the use of the common property of the owners of premises in the apartment building by other persons;
• decisions on consent to the transfer of residential premises to non-residential premises if there is more than one entrance in the house, adopted by a majority vote of the total number of votes of the owners taking part in the meeting, subject to voting for the adoption of this decision by the owners of premises located in the same entrance with the transferred premises, having a majority of votes from the total number of votes of such owners.

The Counting Commission processes the ballots and tallies the voting results. You can read how to count votes correctly here

The composition of the counting commission is determined by the owners at the general meeting. Only those votes for which the owner has chosen only one answer option in the written decision are counted. Otherwise, the decisions are considered invalid. If there are several questions on the agenda, one incorrect answer does not invalidate the entire decision (Part 6, Article 48 of the RF Housing Code).

The final decision of the general meeting is documented in a protocol with all voting ballots attached to it. The requirements for the protocol are regulated in detail by Order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated December 25, 2015 No. 937/pr.

The minutes of the general meeting are prepared within the time limits established by the general meeting of owners of the premises of an apartment building, but no later than 10 days after the meeting.

In what forms can a meeting be held?

A general meeting of owners can be held:

• in person (joint presence);
• correspondence (by survey or using the system);
• part-time and part-time.

Depending on the form of the meeting, the content of the notice of the meeting, which must be sent out to the owners in advance, and the voting procedure will differ.

When voting in person, the owners are personally present at the meeting. When holding an in-person meeting, owners have the right to both personally attend the meeting and vote after reading the agenda of the meeting in absentia. When voting by absentee voting, owners transmit their decisions to the address indicated in the notice of the meeting, or electronically through the system.

Voting forms

In-person voting.

The owner is personally present and expresses his opinion at the meeting.

Difficulties of in-person voting:

• find a suitable room that will accommodate all the owners of the premises of the house;
• decide on a time for all residents to attend the meeting.

The number of participants in in-person voting is recorded by an attendance sheet or in another way agreed upon at the meeting.

Absentee voting.

The owner of the premises is sent a form with questions on the topic under consideration. The resident makes decisions on issues by voting “for”, “against”, “maybe” in writing. He sends the completed form to the address specified in the notice, agreed upon at the meeting.

In case of absentee voting, owners:

• no need to find free time to attend the meeting in person;
• It's easier to think about the answers.

In-person and absentee voting.

In-person and absentee voting are carried out within one meeting.

The meeting is held in person. Residents fill out and submit forms with decisions made on the issues under consideration.

In-person and absentee voting

When and why is it necessary to conduct an OSS in the form of in-person and absentee voting of owners ? After all, for this there are separate forms of in-person and absentee voting. The thing is that both of these forms do not always bring results, since often there is simply not a quorum to make important decisions at the general meeting of homeowners.

In-person and absentee voting combines both forms of conducting an OSS and allows you to discuss issues on the agenda in person and make decisions on them, as well as transfer decisions of homeowners by absentee voting within the prescribed period to the address specified in the notice of the event (Part 3 Article 47 of the Housing Code of the Russian Federation). Read more about this in our article.

This is convenient because if during the in-person voting there was not a quorum to make decisions on the issues on the agenda, then it can be achieved through absentee voting. Particularly relevant is the in-person and absentee form of voting by homeowners when considering agenda items on which decisions are required by 2/3 of the votes of the owners of premises in the apartment building (clauses 1.1-1, 1.2, part 2, article 44 of the Housing Code of the Russian Federation).

Quorum

Quorum

– the number of votes of owners sufficient to make decisions on issues raised at the meeting.

The decision can be made:

• by a majority of the voting owners;
• 50%+1 vote from the number of voting owners;
• at least ⅔ votes from the number of voting owners;
• 100% “for” (clause 1, part 2, article 44 of the RF LC, part 1, article 46 of the RF LC).

1. The decision was made by a majority of the meeting participants. A quorum is required to resolve issues:
   on the use of information systems, including GIS housing and communal services;
2. selection of the meeting administrator (clauses 3.2 – 3.4, part 2, article 44 of the Housing Code of the Russian Federation), that is, a person who, on behalf of the owners of the premises, uses GIS housing and communal services or other information systems.
3. 50%+1 vote of the total number of votes of premises owners. Owners of premises make decisions on the following issues:
   Selection of the chairman, secretary of the meeting and members of the general commission.
4. Choosing a storage location for copies of decisions made and minutes of the owners’ meeting.
5. Choosing a method of managing an apartment building: directly by the owners of the premises;
6. with the help of a management organization, a homeowners' association or a residential complex (Part 2 of Article 161 of the Housing Code of the Russian Federation).
7. Major repairs (clause 5, part 2, article 44 of the Housing Code of the Russian Federation):
   establish a list of contractor works and services;
8. establish a procedure for providing payment documents for major repairs;
9. approve the credit institution to open an account.
10. According to the information system (Article 47.1 of the Housing Code of the Russian Federation):
    choosing a system for absentee and in-person voting;
11. selection of the administrator of the general meeting;
12. approve the procedure for holding a general meeting using the information system.
13. At least ⅔ votes from the number of voting owners. Make decisions on:
    establishing the amount of the contribution for major repairs (clause 1.1-1, part 2, article 44 of the Housing Code of the Russian Federation);
14. approval of a loan or credit (clause 1.2. part 2 of article 44 of the Housing Code of the Russian Federation);
15. provision of common property for use by third parties (clause 3, part 2, article 44 of the Housing Code of the Russian Federation);
16. establishing the amount of payment for the use of common property to third parties under a concluded agreement;
17. reconstruction or reorganization initiated by the owner of the premises, which does not entail a decrease or increase in the common property in the house (clause 1, part 2, article 44 of the Housing Code of the Russian Federation).
18. 100%, all owners in the house vote “yes”.

The consent of all residents is necessary if one of them wants to annex part of the common property of the house when renovating their premises (part 3 of article 36, part 2 of article 40 of the Housing Code of the Russian Federation).

Conducting an OSS ➞ 10 mistakes when holding general meetings of owners

February 27, 2018

Conducting an OSS ➞ 10 mistakes when holding general meetings of owners

The general meeting of owners is a familiar matter for management organizations and owners of premises. However, when holding meetings, management companies often make mistakes, which can lead to legal proceedings and invalidation of the decisions of such meetings.

Today we'll tell you what you need to know to avoid these mistakes.

Violation of the procedure for notification of an upcoming meeting

The first step to holding a general meeting of owners is to notify the owners of the upcoming event. The initiator must notify all owners of premises in the apartment building about the meeting no later than 10 days before its start (part 4 of article 45 of the Housing Code of the Russian Federation). The main mistake that meeting initiators make is choosing the notification method. The most popular way to inform owners about an upcoming meeting is to place a notice on information boards or on the doors of apartment building entrances.

According to Part 4 of Art. 45 of the Housing Code of the Russian Federation, it is possible to inform the owners about the OSS in this way only if the decision on this was made by the owners at one of the previously held meetings. If the decision to notify the owners of the premises by posting notices was not made, the initiator of the meeting within ten days sends a registered letter to each owner or delivers a notification to each owner personally against signature.

Please pay attention to the contents of the OSS message. According to Part 5 of Art. 45 of the RF Housing Code it must contain:

information about the initiator of the meeting;

form of the meeting;

date, place, time. If the OSS is carried out in absentia or in absentia, please also indicate the closing date for accepting decisions of the owners and the address where such decisions should be transferred;

agenda;

the procedure for familiarizing yourself with meeting materials and the place where owners can do this.

Incorrect execution of owner decisions

If you are holding a meeting in person, in absentia or in absentia, collect from the owners written decisions on the issues put to vote (parts 4.1 - 5.1 of Article 48 of the Housing Code of the Russian Federation). Please pay attention to what information needs to be included in decisions, in accordance with Part 5.1 of Art. 48 Housing Code of the Russian Federation:

information about the person participating in the vote;

details of the document confirming the ownership of the premises of the person participating in the vote;

decisions on each issue on the agenda, expressed in terms of “for”, “against”, “abstained”.

If the owner did not mark a single position in any of the issues on the agenda, or, on the contrary, put several ticks on it, such an issue in this decision should be considered invalid and not taken into account when summing up the results of the meeting (Part 6 of Article 48 of the Housing Code of the Russian Federation ).

Incorrect vote count

The presence of a quorum on agenda items and the outcome of the meeting directly depend on the counting of votes at the general meeting of owners of premises in an apartment building.

Incorrect vote counting is caused by incorrectly executed decisions of owners or unreliable data on the ownership of premises in an apartment building.

In addition, errors in counting votes arise due to such a concept as shared ownership. The number of votes of participants in shared ownership must correspond to their shares in the right to living space.

If one person or legal entity owns several premises in an apartment building, he can vote only once. At the same time, the ballot indicates the total area of ​​the premises that belong to such a person.

Incorrectly executed powers of attorney

When the owner does not have the opportunity to take part in the vote, his representative can vote for him by proxy. Before allowing a representative to participate in the OSS, make sure that the power of attorney is drawn up correctly and contains information about the owner and his representative:

surname, name, patronymic - for individuals, full name - for legal entities; place of residence or location;

passport documents or details of constituent documents.

The power of attorney for voting must be executed in accordance with clauses 3 and 4 of Art. 185.1 of the Civil Code of the Russian Federation or certified by a notary. According to paragraphs 3 and 4 of Art. 185.1 of the Civil Code of the Russian Federation, a power of attorney does not need to be notarized if the document:

certified by the organization in which the principal works or studies;

issued by the administration of the inpatient medical institution in which the principal is undergoing treatment.

Error in selecting meeting form

The forms for holding general meetings of owners are listed in Art. 44.1 Housing Code of the Russian Federation. There are three of them: full-time, part-time and part-time.

It happens that the initiator indicates in the notification that the meeting will be in person. Few owners come to the meeting and a quorum is not reached. Then the initiator decides to conduct the correspondence part. At the same time, he does not notify the owners about the absentee part and draws up one protocol for both parts. This is the wrong approach. If the requested in-person meeting does not take place, a separate absentee meeting may be held. At the same time, the owners must be notified about it and a separate protocol must be drawn up (Part 1, Article 47 of the Housing Code of the Russian Federation).

The advantage of the in-person/absentee form is that some of the owners will be able to discuss problems in person with the initiator, and in the absentee part you will gain the missing votes. With this form of meeting of owners, there will be no need to notify each part separately and only one protocol will have to be drawn up.

Outdated information about ownership of premises

Make sure that the register of premises owners reflects current information. Owners do not always provide the management organization with up-to-date data on changes in ownership of real estate properties and changes in the area of ​​premises.

To ensure that the data is correct, apply for extracts from Rosreestr, which stores current information about the owners of premises in apartment buildings. Then you will not have problems counting votes.

Violation of the procedure for transferring documents to the Civil Housing Inspectorate

In accordance with clause 3.1, part 3, art. 45 of the Housing Code of the Russian Federation, the managing organization, homeowners' association, residential complex, housing cooperative, within 5 days from the date of receipt of the decisions and minutes of the general public association from the initiator of the meeting, must send the originals of the minutes of the meeting and decisions to the GZhN body. Then their electronic images need to be placed in the GIS housing and communal services.

A common mistake made by management bodies, homeowners' associations, residential complexes, and housing cooperatives is that they submit documents to the housing authority body on time, but do not post information about the meeting in the system. For failure to post information, you can receive a fine under Art. 13.19.2 Code of Administrative Offenses of the Russian Federation.

Holding meetings with a similar agenda

When the owners are dissatisfied with the decision of the meeting, they decide to hold a new one on similar issues as quickly as possible in order to change the previous one. The management company does not oppose this. But this can lead to negative consequences for the organization.

If, within three months, the GZHI receives two or more minutes of meetings of one MKD, containing decisions on similar issues on the agenda, the GZHI body is obliged to conduct an unscheduled inspection in order to establish the fact of compliance with legal requirements when organizing, holding and documenting the results of such a meeting.

Changing the agenda

It happens that during a meeting an issue arises that the owners want to discuss, and it is additionally included in the agenda. It is prohibited to do this, according to Part 2 of Art. 46 Housing Code of the Russian Federation. During the meeting, decisions cannot be made on issues not included in the agenda, nor can the agenda of the meeting be changed.

If issues raised during the meeting are important, write them down and put them on the agenda for the next meeting. What issues can be resolved by the general meeting of owners?

Violation of the quorum of the meeting

Another difficulty when holding a meeting is to understand how many votes at the meeting a particular decision is made.

The general meeting of owners of premises in an apartment building is considered legitimate if more than 50% of the owners of premises in an apartment building are present. But 50% of the votes do not ensure the presence of a quorum on all issues submitted to the OCC.

The Housing Code of the Russian Federation divides issues according to the degree of importance. The issues of choosing the chairman, secretary and counting commission of the meeting, the method of management and the Council of the MKD are decided by 50% of all votes that took part in the voting.

The method of forming the capital repair fund is chosen by 50% of the number of votes of all owners of premises in the apartment building (clause 1.1, part 2, article 44 of the Housing Code of the Russian Federation).

Other issues are decided by a qualified number of votes - this is ⅔ of the number of votes of all owners of premises in the apartment building. One of these questions is about the use of the capital repair fund in apartment buildings (Part 1 of Article 46 of the Housing Code of the Russian Federation).

The absolute majority (100%) resolves only issues related to changes in the area of ​​the common property of an apartment building. In order for the initiator to be sure that the meeting is being held according to all the rules, he must be guided by Art. 44 – 48 of the Housing Code of the Russian Federation, which indicate the main nuances of conducting OSS.

https://roskvartal.ru/blog/02/26/10-oshibok-pri-provedenii-obschih-sobraniy-sobstvennikov

Is it possible to vote with a simple majority?

The lion's share of issues can be resolved by a simple majority.
It should be understood that we are not talking about the majority of all owners, but only about more than half of those present.

For example, the quorum at a general meeting is 50% of the owners, and the decision is made by a majority among these participants.

In fact, the minimum threshold for making a decision is more than 25% of all owners, which is only a 4th part of their number.

All issues that relate solely to the maintenance of the home and related expenses can be decided by a simple majority.

By a simple majority, you can also decide on the management of the house by holding elections for the Council and the chairman of the house. You will be able to set the amount of their remuneration, as well as determine additional rules for holding a general meeting, for example, by setting the number of mandatory meetings per year.

This number will also be enough to approve contracts for home maintenance and minor repairs.

On what issues is absentee voting held for homeowners?

The Housing Code of the Russian Federation does not separately highlight the list of issues that are adopted at the general meeting of homeowners exclusively by in-person voting or by absentee voting. This means that any issue put on the agenda can theoretically be resolved by absentee voting. This:

• whether to carry out major or current repairs of common property;
• how to use the capital repair fund;
• how to form a capital repair fund for a residential building;
• whether to obtain a loan for major repairs, whether to set an increased fee for major repairs (more than the minimum);
• issues of using common property, installing advertisements, leasing, etc.

If the procedure for holding a meeting or absentee voting was violated, the protection of housing rights is carried out in court. The owner of residential premises in such a house has the right to file a claim in court to challenge the decision of the general meeting of owners.

Calculation of the results of absentee voting of apartment building owners

Voting in absentia involves making decisions on each item on the agenda only on the basis of written decisions received before the deadline. The number of votes of each owner is determined in proportion to his share in the right of common ownership of the common property in this house. The owner has the right to act through a representative if he has a special notarized power of attorney for voting (you can create one following the example of a power of attorney for signing documents).

Only those votes that clearly expressed one decision on one issue are counted - for, against, abstain. If the owner violated this requirement in some issues, his vote on such issues is not counted and does not affect the validity of decisions on other issues.

How can votes be counted at a general meeting of owners?

Each owner of residential and non-residential premises in the house has a voice in support or disagreement regarding the issues raised on the agenda. For each of them, there is a separate count of those who expressed their opinions “for”, “against”, “abstained”. Only one decision on the agenda item is subject to accounting, which follows from the norms of clause 3, part 5.1, article 48 of the Housing Code of the Russian Federation.

How many votes are needed to make a decision in an apartment building?

In this case, the share in the ownership of the common property in the house is taken into account (Part 3 of Article 48 of the Housing Code). The specified share, in turn, is proportional to the area of ​​the premises owned (Part 1, Article 37 of the Housing Code).

In order for the vote to be considered valid, the presence of a quorum is first calculated. To do this, it must accept more than 50 percent of the votes of the owners of the premises in the house.

Voting can be carried out in the form of in-person, absentee and internal-absentee voting. The counting of responses in ballots is carried out by citizens, authorized residents, and is documented in the minutes of the general meeting. The protocol contains the signatures of those who counted the votes.

Rules for in-person voting: example of implementation

Quite a lot of people can attend in-person voting.
Determining the quorum at a general meeting of owners is difficult. If there are 100 apartments in a building, then there may be 40, 50 or even 80 people participating.

It should be understood that in the latter case, the votes of more or less than 50 owners may be needed to make a decision.

We write more about what a quorum is and how to calculate it here.

Organizing a meeting well with so many citizens is not easy. Especially when it comes to discussing controversial issues, where everyone has their own opinion.

Voting can be organized in several ways - both by show of hands and by using ballots if residents want a “closed” form. And the role of the Counting Commission is very difficult to overestimate.

Members of the commission must not simply count those present who support the decision. They must record the decisions of each individual, later translating them into the number of votes.

How is absentee voting of homeowners conducted by poll?

If the meeting of homeowners did not take place due to lack of quorum, it hardly makes sense to hold the meeting again. Then absentee voting takes place. And the survey path assumes the following order.

The meeting agenda remains the same (as if attempting to hold the meeting by voting in person). Each owner is sent a message, which, in addition to the agenda, must indicate: the date and time when the reception of messages from owners on issues put to vote ends, the address where such decisions should be transferred, how and where to familiarize yourself with the materials that will be presented at the meeting , the initiator of the meeting and his contact phone number.

The homeowners in the house make decisions on each issue - for, against, abstain. The decision form contains information about the person who voted, about the document on the ownership of such person. It is submitted to the address specified in the message and the counting commission conducts a count of votes.

Counting methods

Referring to the third part of Article 48 in the Housing Code of the Russian Federation, each owner of premises in an apartment building has the number of votes at the general meeting, which is directly proportional to his share in the rights to common property. Article 37, part one, of this code says that common property is distributed between the owners of residential and non-residential premises of a multi-storey building not equally, but depending on the area that belongs to them in accordance with title documents, for example, on the square footage of a personal apartment .

There are only two ways to count the votes of the general meeting of owners of an apartment building. An example of the first of these is presented below:

1. First version of vote counting

Each owner has the same number of votes as the amount of square meters in his personal property.
If an individual owns one apartment in a given apartment building with a total area of ​​68 square meters, and the house itself, in accordance with information from Rosreestr, has an area of ​​3674 square meters, he has 68 votes out of 3674. Since in order to make a positive decision, two must vote “For” third out of 3674, using the most common calculator, the Partnership is able to quickly calculate whether the required number of votes has been collected.

In this case there should be at least: 3674*2/3=2449.33.

2. Second method

The second way is to calculate the results as a percentage, which is often used to determine quorum. Using the same numbers as in the first option, an example calculation would look like this:

68/3674*100=1.85 – this is exactly the percentage of votes the owner of the apartment will have.

Since when calculating the results, the same two-thirds “For” are still needed to make a decision, in this case approval should be at least 2/3*100=66.6%.

As you can see, the second option may be more confusing for many, but they comply with Russian legislation and the norms of the Housing Code in particular. When summing up the results, you can choose any one at your discretion, which must necessarily be displayed in the statement (protocol).

The second option, however, is very convenient when it is necessary to calculate the number of votes of the owner of a share of an apartment, especially when there is only one shareholder at the meeting, who is responsible only for himself. The percentage of votes of such a person is determined by multiplying his share by 100, after which the result is divided by the total area of ​​​​the multi-story building. For example, if a citizen owns ½ of an apartment, then, using the example above, his percentage of votes is ½*100/3674=0.013.

What issues require 2/3 votes?

You need to get 2/3 of the votes in cases where the fate of common property is concerned. This is not about maintenance, but about the disposal of property.

For example, if someone wants to set up a kiosk in a local area and asks to give him a small plot of land for rent, then the permission of a simple majority will not be enough.

The main issue, which requires 2/3 of consonants, is the topic of reconstruction and major repairs of the house.

In addition, you will have to collect the same amount when the question of serious financial expenses is raised.

When large amounts are involved, then 2/3 of the votes is not just a requirement, but also additional insurance that will save you from litigation.

The law specifies only the minimum number of owners that is necessary to make a decision, but you can increase it.

For example, if the law requires only 50% of the votes, the meeting has the right to determine that the consent of at least 2/3 of the residents is required. Remember that general decisions have legal force and can tighten the figures specified in the law at the general discretion. Just remember that you have no right to reduce these standards.

The same voting is necessary if the issue of advertising placement is being decided: installing a billboard and other advertising equipment on the roof, on the walls or in the local area.

This applies to any issue of the use of common property of apartment buildings.

Often the need to make a decision is related to someone's desire to use the premises or area for commercial purposes, for example, converting the basement into a small store or hairdresser.

Another option for using common property is to build a separate porch for the entrance to the first floor when converting an apartment into a store.

It is illegal to change property boundaries without 100% votes. If such a structure violates the boundaries of the common area of ​​the house, it is necessary to obtain the approval of the meeting.

When is 100% presence and 100% voting required?

When the need for unanimous decision-making arises, in many cases the situation reaches a dead end.

Firstly, to gather all the owners and organize a discussion, and even so that everyone speaks in favor, is a very problematic matter.

Secondly, the requirement for 100% of votes in the law is mentioned only in a few moments, and even then without categoricality. There is no question of everyone being present at the meeting.

When, by law, will you need to obtain the consent of all owners? You definitely need to collect all the votes in the following situations:

1. Demolition of the building and relocation of residents under one of the programs for renovation and reconstruction of old buildings. This refers to new programs, for example, the program to replace Khrushchev apartment buildings with new buildings in Moscow.
   If you have collected only the majority of signatures, you can try to get your way in court, but the likelihood of success is negligible.

1. Reconstruction of the building.
   Despite the fact that according to the law, only 2/3 of the owners are needed for this item, without full consent you can be sued.

   We are talking about those cases when, during the reconstruction, the boundaries of the common territory will be changed, in which the property of the residents will be reduced.

You need to get 100% consent if a complete reconstruction of the house or partial renovation will lead to changes in the boundaries of the property, for example, if part of the local area becomes inaccessible for public use.

If you receive the approval of only 2/3 of the owners, then in the future you may run into litigation.

50% + 1 vote of the total number of votes of MKD owners

• The issue of transferring the right to make decisions on the timing and procedure for carrying out routine repairs to the Council of an apartment building.

This is convenient - there is no need to hold a meeting on the issue of repairing the entrance or replacing mailboxes. These decisions will be made by the MKD Council.

• Determining the method of accumulating funds for major repairs (general boiler or special house account). As well as the choice of the owner who will open a special account and carry out transactions with money on behalf of all owners.

How to count votes in absentia: sample protocol

Due to more flexible conditions, in particular longer time frames, many more owners can take part in absentee voting. They express their decision by filling out special ballots. The completed ballot must be submitted by the predetermined time.

Even the busiest residents will be able to take part, because all they have to do is check a few boxes and take the form to the specified location.

The data from the voting sheets is transferred to the protocol.

The quorum for an absentee meeting can be calculated by the number of ballots received, converted into votes also in accordance with the footage.

As in the first case, the results must be calculated, and therefore the protocol must be drawn up, within 10 days.
The MKD Counting Commission must enter data from individual ballots into the general list of participants, indicating the decision of each owner next to his name.

It is necessary to count the number of affirmative votes and their ratio to the total number of participants. At the end, the results are summed up - whether a decision was made on each issue.

Remember that during the same 10 days you must provide several copies of the voting results: one of them must be posted in a place where residents have public access.

Number of votes for making various decisions at the General Meeting of LLC participants

1. home

/About LLC/

2. Number of votes for making various decisions at the General Meeting of LLC participants

The adoption of a decision at the General Meeting of Participants of a Limited Liability Company requires the required number of votes. The table below indicates the types of issues that can be considered and made by the General Meeting, as well as the required number of votes to make a decision on such issues, the possibility of changing the required number in the LLC Charter and a link to the article and paragraph of the Law.

Unanimously, by a simple majority or by two-thirds votes, a decision can be made on issues on the agenda of the General Meeting of the LLC.

In this article, the Law refers to Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies.”

How to notify owners about a meeting?

If earlier at the general meeting the owners have already determined that announcements about new meetings can be placed in the entrance, you can do so. But if such a decision has not been made, notifications will need to be sent by registered mail or delivered in person against signature.

Owners must be notified no later than 10 days before the date of the meeting. Please note: the State Property Management Committee of your district will also need to notify about the meeting of owners if the house is owned by the city of Moscow.

You will also need to maintain a register of notifications, indicating in it the details of the owners and the dates of their notification. If you send a notification by registered mail, the date of notification is considered to be the date the letter was sent. In the future, postal receipts will need to be attached to the minutes of the owners’ meeting.

If you are holding a meeting in absentia or in absentia, you will need to attach voting forms for each issue to the notice and indicate the closing date for decisions, as well as the place or address where they should be sent.

Forms for holding a general meeting

When holding a general meeting of owners of an apartment building, it is necessary to draw up documents confirming the proper organization of absentee voting. To draw up documents, it is convenient to use the provided sample forms, adapting them to suit your situation (there is no strict form for the forms).

The Supreme Court examined in detail the dispute about invalidating the decision of the meeting of SNT members

The Supreme Court published Determination No. 5-KG20-117-K2, in which it drew attention to the violations committed by the courts of three instances when considering the case on invalidating the decision of the general meeting of members of a gardening partnership.

Dispute within a partnership

Dmitry Usanov is the owner of a land plot located in the Shcherbinka SNT, of which he has been a member since August 22, 2008.

On June 11, 2021, a general reporting and re-election meeting of SNT members was held with the agenda: election of the chairman, secretary and members of the counting commission, admission of candidates for SNT members, election of board members; elections of the chairman of the board and elections of the audit commission. According to the minutes of the meeting, the total number of members of the partnership is 160 people; 113 people registered and received voting ballots, including persons acting on behalf of the members of the partnership by proxy.

At the same time, the minutes of the meeting of the commission for the preparation of the reporting and re-election meeting dated June 9, 2021 reflect that, according to the minutes of the last reporting and re-election meeting at that time, held on August 6, 2021, there were 220 members in the Shcherbinka SNT; after 1992, plots were repeatedly divided, merged, and transferred to new owners; The admission of new members of the partnership to replace those who left at general meetings was carried out irregularly.

According to the voting results, in particular, 45 new members were accepted into the SNT and Sergei Popov was elected chairman of the board. Dmitry Usanov did not take part in this meeting.

Disagreeing with the decision, Dmitry Usanov filed a lawsuit against SNT to invalidate the decision of the general meeting on the admission of new members and election of the chairman, to invalidate the change in information about the chairman of the partnership in the Federal Tax Service. He also demanded that Sergei Popov and the accountant appointed by him be obliged to transfer to the legal management of the partnership all funds collected during his tenure, at his own expense to restore the demolished gazebo in the recreation area of ​​the Tsyganka River, to dismantle the fence illegally erected on the territory of the bridge over the Tsyganka River that does not belong to the partnership, return according to the inventory to the legal management of the partnership the constituent documents and all documentation that was drawn up after June 11, 2021, including all data and documents relating to residents and members of SNT, as well as all correspondence that Popov conducted on behalf of the chairman the board of the partnership with official bodies and private individuals. In addition, the plaintiff asked that contracts, agreements, certificates, acts and other documents signed and issued by Sergei Popov as chairman be declared void.

The plaintiff considered that illegal decisions of the general meeting violated his rights and legitimate interests as a member of the partnership, namely, the right to familiarize himself with the documents of the association was violated, a new chairman of the SNT was illegally elected - in violation of the quorum and the procedure for holding the meeting. The subsequent registration of Sergei Popov as chairman of the board of the partnership in the Unified State Register of Legal Entities, according to the plaintiff, may negatively affect the activities of the partnership.

SNT did not recognize the claims, indicating in its objections that the meeting was held in accordance with current legislation with a quorum present. In his opinion, filing a claim is aimed solely at destabilizing the situation in the partnership and is an attempt to avoid criminal liability for acts committed by the previous board of the partnership, which included the plaintiff, as a result of which the partnership suffered damage on an especially large scale and on the basis of which a criminal case was initiated .

It was also noted that there were no applications from Dmitry Usanov to familiarize himself with any documents related to the activities of the partnership. Moreover, he himself held onto the partnership documentation for a long time. The plaintiff’s vote at the general meeting of the partnership on June 1, 2021 could not influence the decisions made; 112 of the 113 members of the partnership (representatives) present at the meeting expressed no confidence in the then-current chairman. In addition, the objections stated that the plaintiff did not provide evidence of a violation of his rights and legitimate interests during the holding of this general meeting.

The courts partially upheld the claim

Satisfying the claims of Dmitry Usanov regarding the recognition of the decision of the general meeting of SNT members on the issues of accepting new members and electing Popov as chairman as invalid, the court of first instance, having established that the total number of members of the partnership was 220 people, and indicating that there was 60 evidence confirming the exclusion one of the members of the partnership, who was not represented by the defendant to the court, came to the conclusion that there was no quorum at the general meeting.

Refusing to satisfy the demands to invalidate the change in information about the chairman of the partnership on the basis of the minutes of the general meeting, the court proceeded from the fact that recognizing the decision of the general meeting regarding the election of Popov as chairman as illegal is the basis for excluding the corresponding entry from the Unified State Register of Legal Entities. In addition, the tax authorities were not named as defendants in the case and no demands were made against them.

Refusing to satisfy the rest of the claims, the court pointed to the lack of proof of the demolition of the gazebo, the erection of a fence, as well as the fact that the plaintiff did not specify which documents he was asking to oblige the defendant to hand over to him.

The courts of appeal and cassation agreed with the decision of the first instance, in connection with which SNT filed a cassation appeal with the Supreme Court.

The Supreme Court took a closer look at the case

Having studied the case materials, the Supreme Court noted that the only basis for recognizing the decisions of the general meeting of SNT members as invalid was the conclusion of the court of first instance, made based on the results of an examination of the evidence presented by the parties, that there was no quorum at this meeting. “Meanwhile, this conclusion does not correspond to the legislation in force at the time of the meeting and the charter of this association,” the Court emphasized.

The Supreme Court indicated that by virtue of para. 7 paragraph 2 art. 21 of the Law on Gardening, Vegetable Gardening and Dacha Non-Profit Associations of Citizens (as amended), the general meeting of members of a horticultural, gardening or dacha non-profit association is valid if more than 50% of the members of such an association are present at the said meeting. The same requirement for the quorum of the general meeting is established in the charter of SNT "Shcherbinka".

The Supreme Court referred to paragraph 1 of Art. 181.2 of the Civil Code, according to which the decision of the meeting is considered adopted if the majority of the meeting participants voted for it and at least 50% of the total number of participants in the relevant civil law community participated in the meeting. Thus, the court of first instance found that 113 SNT members were present at the general meeting, which is more than 50% of the 220 members of the partnership. Thus, the Supreme Court noted, the first instance had no grounds for stating the absence of a quorum, given that there were no conclusions about the presence of less than 113 people at the meeting, as reflected in the minutes of June 11, 2021, contrary to the arguments of Dmitry Usanov , the court did not.

In addition, when considering the case, the appeal indicated that SNT did not prove the presence of a quorum on the basis that the documents available in the case materials do not allow us to reliably establish the total number of members of the partnership on the date of the meeting, which is the basis for satisfying the claim in part.

Meanwhile, the Supreme Court noted, in the appealed decision of the appellate court, in violation of paragraph 6 of Part 2 of Art. 329 of the Code of Civil Procedure (as amended in force at the time of consideration of the case on appeal) does not contain reasons why the appeal did not agree with the conclusions of the first instance.

The Supreme Court noted that in para. 2 p. 29 of the Resolution of the Plenum of the Supreme Court dated June 19, 2012 No. 13 “On the application by courts of the norms of civil procedural legislation regulating proceedings in the court of appeal” it is explained that if the court of first instance incorrectly determined the circumstances relevant to the case, then an appeal should be made bring up for discussion the issue of the persons participating in the case presenting additional (new) evidence and, if necessary, at their request, assist them in collecting and requesting such evidence. However, the Supreme Court pointed out, the appellate court rejected SNT’s request to introduce new evidence in violation of these clarifications.

The Supreme Court came to the conclusion that the lower courts committed significant violations of the norms of both substantive and procedural law, which influenced the outcome of the case, without eliminating which it is impossible to protect the rights and legitimate interests of SNT. The court considered that, taking into account reasonable time limits for legal proceedings, it was necessary to send the case to the court of appeal.

The mistakes of lower authorities are surprising

In a commentary to “AG”, the lawyer of MCA “Centryurservice” Ilya Prokofiev called the position of the Supreme Court justified and fully consistent with the legislation, including that in force at the time of the emergence of controversial legal relations: “It is obvious that the lower courts, when considering the case, not only incorrectly established the circumstances that have significance for the case, but also the norms of the law were incorrectly applied, and the norms to be applied were not applied.”

He added that it is quite surprising that the courts made such obvious mistakes when considering the case, since the essential circumstance, namely the presence or absence of a quorum at the general meeting, seems quite obvious and does not require significant effort to establish. “We can conclude that such mistakes were made by the courts either due to inattention when considering the case, or due to unwillingness to delve into the essence of the dispute, which, unfortunately, is often found in practice. In any case, the Supreme Court of the Russian Federation correctly determined that the issued judicial acts should be subject to cancellation, since without eliminating the violations committed by the courts, restoration and protection of the violated rights of the defendant are impossible,” concluded Ilya Prokofiev.

Lawyer of Branch No. 49 of the Moscow Regional Bar Association Tatyana Sayapina noted that the Supreme Court’s ruling demonstrates a thorough study of the case materials and a real desire to understand the legality and fairness when making a decision on this dispute. “Regarding the significant violations committed by the lower courts when considering this case, it is quite difficult to say why they were committed - unwillingness to understand the case or ignorance of the law. To clearly answer this question, you need to know the true motives of the judges of lower courts,” the lawyer noted.

Tatyana Sayapina pointed out that judges have a heavy workload, but this is not a reason for irresponsible performance of their assigned duties. By virtue of paragraph 1 of Art. 11 of the Code of Judicial Ethics, competence and integrity are necessary conditions for the proper performance by a judge of his duties in the administration of justice. According to Art. 26.3 of the Law on the Bodies of the Judicial Community, a candidate for the position of a judge passes a qualification exam, while the procedure for determining the assessment of the knowledge of a candidate for the position of a judge is established by the regulations of the examination commissions, approved by the Higher Examination Commission.

“Thus, a priori, the judge must be competent when considering a dispute. But in this case, a number of lower courts made mistakes. In my opinion, situations of this kind should not go unnoticed in the judicial community. It is necessary to increase the competence of judges and strive to optimize the judicial process in such a way that judges have a real opportunity to carefully study the case and the desire to make a truly legal and informed decision,” emphasized Tatyana Sayapina.

What does participation in the meeting give?

In the first part of Article 46 of the Housing Code of the Russian Federation, you can familiarize yourself with the requirements that are put forward for making decisions at the OSS. It is this article that establishes the rules regarding voting and references to the footage of real estate. In addition, in the Housing Code, Article 44, second part, it is stated that a decision cannot be made if the part of those voting “For” is equal to less than two-thirds of all votes. It is the voices, not the people present.

Since in a HOA or other form of management the need to hold an annual or unscheduled collection arises for very good reasons, every owner of residential or non-residential premises in the house should be interested in attending this event. Decisions are made jointly for a reason; the result will affect everyone, including the financial side. Sources

• https://kapremont.expert/mnogokvartirniy-dom/sobraniye-sobstvennikov/kvorum-s.html
• https://www.mos.ru/otvet-dom-i-dvor/kak-provesti-obschee-sobranie-sobstvennikov/
• https://roskvartal.ru/provedenie-oss/6181/instrukciya-po-provedeniyu-oss-v-forme-ochno-zaochnogo-golosovaniya
• https://vgkh.ru/articles/golosovanie-zhkkh/
• https://iskiplus.ru/kak-provoditsya-zaochnoe-golosovanie-sobstvennikov-zhilya/
• https://kapremont.expert/mnogokvartirniy-dom/sobraniye-sobstvennikov/podschet-golosov-obshhego-ssmd.html
• https://PravoNedv.ru/kvartira/zhkh/podschet-golosov-na-sobranii-sobstvennikov.html
• https://spravedlivo.center/articles/obshhee-sobranie-sobstvennikov-kakim-kolichestvom-golosov-prinimayutsya-resheniya/